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Of  elementary  treatises  on  all  the  principal  subjects  of  the  law.    The 
special  features  of  these  books  are  as  follows : 

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1.  Norton  on  Bills  and  Notes.      (3d Edition.) 

2.  Clark's  Criminal  Law.      (2d  Edition.) 

3.  Shtpman's  Common-Law  Pleading.      (2d Edition.) 

4.  Clark  on   Contracts. 

5.  Black's  Constitutional  Law.      (2d  Edition.) 

6.  Fetter  on  Equity. 

7.  Clark  on   Criminal  Procedure. 

8.  Tiffany  on  Sales. 

9.  Glenn's  International  Law. 
10.  Jaggard  on   Torts.      (2vols.) 

n.  Black  on  Interpretation  of  Lawt. 

12.  Hale  on  Bailments  and  Carriers. 

13.  Smith's  Elementary  Lave. 

14.  Hale  on  Damages. 

15.  Hopkins  on  Real  Property. 

1 6.  Hale  on   Torts. 

17.  Tiffany  on  Persons  and  Domestic  Relations. 

1 8.  Cr os-well  on  Executors  and  Administrators,. 

19.  Clark  on   Corporations. 

20.  George  on  Partnership. 

21.  Shipman  on  Equity  Pleading. 

22.  McKelvey  on  Evidence. 

23.  Barrows  on  Negligence. 

24.  Hughes  on  Admiralty. 

25.  Eaton  on  Equity. 

26.  Tiffany  on  Principal  and  Agent. 


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F2446 


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H^ANDBOOK 

63? 

I    / 


ON    THE 


LAW   OF    NEGLIGENCE 


By  MORTON    BARROWS,  A.  B.,  LL.  B. 


OF   THE    ST.   PAUL    BAR 


ST.  PAUL,  MINN. 
WEST    PUBLISHING    CO. 

1900 


COPYRIGHT,  1899, 

BY 

WEST  PUBLISHING  CO. 


PREFACE. 


Perhaps  no  single  subdivision  of  general  law  has,  in  the  last  dec- 
ade, so  largely  engrossed  the  attention  of  our  courts,  both  state  and 
federal,  as  that  of  Negligence.  The  most  common  form  in  which 
litigation  of  this  class  has  obtruded  into  the  courts  is  that  of  per- 
sonal injury  cases,  so  called.  It  has  spread  through  the  country  like 
an  epidemic,  but,  unlike  the  ordinary  epidemics  of  physical  disease, 
it  gives  no  sign  of  passing  away,  and  fairly  promises  to  become  en- 
demic and  permanent.  At  least  two  results  are  already  conspicuous: 
On  the  one  hand,  the  increased  precautions  against  physical  injury 
and  legal  liability  which  are  being  taken  by  property  owners  and 
employers  of  labor;  and,  on  the  other,  the  more  precise  definition 
and  exact  enunciation  by  the  courts  of  the  involved  law.  The  former 
appeals  more  directly  to  the  laity;  the  latter,  to  the  legal  profession; 
but  the  two  are  inseparable,  and  form  a  potent  factor  for  the  public 
weal. 

It  is  in  these  changed  conditions — the  enforced  attitude  of  prop- 
erty holder  and  employer,  the  altered  rights  of  citizen  and  laborer, 
and  the  recent  adjustments  of  these  complex  relations  by  the  courts 
— that  the  present  work  finds  its  raison  d'etre.  It  is  not  claimed 
for  it  that  it  is  a  treatise,  or  that  it  is  an  exhaustive  consideration 
of  the  subject.  The  aim  has  been  to  fairly  and  impartially  state  the 
settled  law,  and  to  so  place  before  the  reader  the  mooted  points  and 
conflicting  decisions  that  he  may  arrive  at  his  own  conclusions,  ir- 
respective of  any  expressed  sentiment  on  the  part  of  the  author. 

In  general,  the  text  is  the  author's  expression  of  the  gist  of  the  law 
as  found  in  the  leading  cases  and  decisions  of  the  courts  of  last  re- 
sort ;  its  only  claim  to  merit  lying  in  its  accuracy  and  simplicity. 

In  the  preparation  of  the  chapter  devoted  to  "Death  by  Wrongful 
Act,"  extended  use  has  been  made  of  the  excellent  work  on  that  sub- 
ject by  Mr.  Francis  B.  Tiffany. 

St.  Paul,  Minn.,  November  1,  1899. 


TABLE  OF   CONTENTS. 


CHAPTER  I. 

DEFINITION   AND   ESSENTIAL  ELEMENTS. 

Section  Page 

Introductory    1-2 

1.  Definition    3 

2.  Essential   Elements 8-9 

3—1.     Proximate    Cause 9-17 

5.  Efficient,  Intervening,  or  Co-operating  Cause— Definition. ...  17-33 

CHAPTER  H. 

CONTRIBUTORY  NEGLIGENCE. 

6.  Definition    34-35 

7.  General   Rule 35-36 

8.  Proximate  Cause 36-38 

9.  Degree   of   Care 38-39 

10.  Terror  Caused  by  Real  or  Fancied  Peril 40-41 

11.  Knowledge  of  Danger 41-42 

12.  Assumption  of  Risk 43-44 

13.  Anticipation  of  Negligence 41  45 

14.  Legal  Status  of  Plaintiff  as  Affecting  His  Contributory  Negli- 

gence      45-48 

15.  Plaintiff  as  Trespasser  or  Licensee 48-50 

16.  The  Relative  Time  of  Plaintiff's  Negligence  as  Affecting  His 

Right  to  Recover 51-53 

17.  Plaintiff's  Negligence  after  the  Accident 53-54 

18-19.     Contributory  Negligence  of  Third  Persons 54-55 

20.  Master  and  Servant  or  Principal  and  Agent 55-56 

21.  Shipper  and  Carrier  of  Goods 56-58 

22-23.            Passenger  and  Common  Carrier 58-  oo 

24.            Negligence  of  Husband  Imputed  to  Wife 60-61 

25-27.     Imputed    Negligence 61-65 

28.  Degree  of  Care  Required  of  a  Child 65-73 

29.  Lunatics  and  Idiots 73-74 

30.  Physical  Condition  an  Element  of  Contributory  Negligence...  74-76 

31.  Intoxication    76-79 

BAR.NEG.  (vii) 


Vlll  TABLE    OF    CONTENTS. 

Section  Page 

32.  Comparative    Negligence 79-81 

33.  Evidence— Burden  of  Proof 81-84 

34.  Pleading  Contributory  Negligence 85-86 

35.  Contributory  Negligence  as  Question  of  Fact 8G-S8 


CHAPTER  HI. 

LIABILITY  OF  MASTER  TO  SERVANT. 

36.  Duty  of  Master 89-90 

37.  Appliances  and  Places  for  Work 90-96 

38.  Selecting  and  Retaining  Servants 97-101 

39.  Rules   and   Regulations 101 

40.  Promulgation  of  Rules 102-105 

41.  Warning  and  Instructing  Servants 105-107 

42.  Limitation  of  Master's  Duty 108 

43.  Ordinary  Risks 10S-111 

44.  Known  Dangers  Assumed 111-113 

45.  Unusual  Dangers  not  Assumed 113-117 

46.  Unknown  Defects  or  Daxigers 117-119 

47.  Promise  to  Repair 120-122 

48.  Compliance  with  Express  Orders 122-124 

49.  Servants  and  Fellow  Servants 124-129 

50.  Common  Employment  as  Test 129-131 

51-52.  Vice  Principal 131-142 

53-54.  Rule  in  Federal  Courts 142-145 

55.  Concurrent  and  Contributory  Negligence 146-151 

56.  Servants'  Own  Negligence  as  Proximate  Cause 152 

CHAPTER  IV. 

LIABILITY  OF  MASTER  TO  THIRD  PERSONS. 

67.    Nature  of  Master's  Liability 153-154 

58.     Relationship    155-160 

59-60.     Independent    Contractor 160-162 

61.  Reasonable  Care  in  Selection  of  Contractor 162 

62.  Liability  When  the  Object  of  the  Contract  is  Unlawful. .         163 

63.  Absolute  Personal  Duties 163-167 

64.  Willful  Torts  of  Servants 167-169 

65.  Torts  Outside  Scope  of  Employment 170-171 

66.  Independent  Torts 172-174 


TABLE    OF   CONTENTS.  IX 


CHAPTER  V. 

COMMON  CARRIER  OF  PASSENGERS. 

Section  Page 

67.  Definition    ' 175-176 

68.  The  Relation  of  Passenger  and  Carrier 176-178 

69.  Termination  of  Relation 178 

70.  Arrival  of  Passenger  at  Destination 178-180 

71.  Transfer  of  Passenger  to  Connecting  Carrier 181-182 

72.  Ejection  of  Passenger 183-186 

73.  Who  are   Passengers— Definition 186-193 

74.  Prepayment  of  Fare 193-194 

75.  Classification  of  Passengers 194-197 

76.  The    Contract 197 

77.  The  Ticket  as  Evidence 197-200 

78.  Compensation   200-201 

79.  Liability  to  Passengers 201-209 

80.  Liability  for  Delay 210-211 

81.  Limitation  of  Liability 212-213 


CHAPTER  VI. 

CARRIERS  OF  GOODS. 

82.  Definition    214-217 

83.  Liability  for  Loss  or  Damage 217-225 

84.  Act  of  God  or  Public  Enemy 225-230 

85.  Act  of  Shipper 230-232 

86.  Authority  of  Law 232-233 

87.  Inherent  Nature  of  Goods 233-234 

88-89.     Liability  for  Delay 234-236 

90.  Special  Contract  of  Delivery-' 237 

91.  Contracts  Limiting  Liability 237-243 

92.  Limitation  in  Illinois 244 

93.  Limitation  in  New  York 244-246 

94.  Limitation  of  Amount  of  Liability 247-250 

95.  Limiting  Time  and  Manner  of  Making  Claims 250-251 

96.  Consideration    252-253 

97.  Construction  of  Limiting  Contracts 253-254 

98.  Notices   Limiting  Liability 254-259 

99.  Actual  Notice  of  Reasonable  Rules 259-261 

100.  Special  Classes  of  Goods 261 

101.  Live    Stock 261-266 

102.  Baggage   267-278 


X  TABLE    OF    CONTENTS. 

Section  Page 

103.  Effects  of  Occupants  of  Sleeping  Cars 278 

104-105.     Beginning   of    Liability 278 

106.  Delivery  for  Immediate  Transportation 279-280 

107.  Acceptance 280-281 

108.  Termination  of  Liability 281 

109.  Delivery  to  Consignee 282-290 

110.  Delivery  to  Connecting  Carrier 290-296 

111.  Excuses  for  Nondelivery 296 

112.  Superior  Adverse  Claim 297 

113.  Stoppage  in  Transitu 297-298 

114.  Excepted   Perils 299 

CHAPTER  VH. 

OCCUPATION  AND  USE  OF  LAND  AND  WATER. 

115.  Duties— General  Rule 300-301 

116.  Lateral    Support 301-302 

117.  Dangerous   Premises 302-303 

118.  Visitors,  Licensees,  and  Trespassers 304-307 

119.  Hidden  Dangers,  Excavations,  etc 308-310 

120.  Private    Grounds 310-311 

121.  Landlord  and  Tenant 311-312 

122.  Contract  to  Repair 312-313 

123.  Premises  Defective  at  Time  of  Renting 313-315 

124.  Liability  to  Tenant 315-316 

125.  Safe  Access  to  Rented  Property 316-317 

126.  Water    Courses 317-318 

127.  Construction  and  Maintenance  of  Dams 318 

128.  Rule  in  United  States 318-319 

129.  Obstruction  of  Navigable  Streams 319-320 

CHAPTER  VIII. 

DANGEROUS  INSTRUMENTALITIES. 

130.  Railroads— Degree  of  Care  Exacted  in  Operating 321-322 

131-132.  Collision  with  Persons— Care  Required  of  Railroad 322-325 

133.  Care  Proportioned  to  Danger 325-328 

134.  Signals    328-329 

135.  Care  Required  of  Persons 329-332 

136.  Failure  to  Give  Signals 332-333 

137.  Assurance  of  Safety  by  Agents 333-534 

13a  Obstructed  View..                                                      ..334-335 


TABLE    OF    CONTENTS.  XI 

Section  Page 

139.  Infirm  Travelers 336 

140.  Contributory    Negligence 337-340 

141.  Collision  with  Animals 340-341 

142.  Wanton  or  Willful  Injury 342-343 

143.  Care  after  Discovery 343-344 

144.  Fences    343-348 

145.  Fires    348-349 

146.  Intentional    Fires 349-350 

147.  Accidental    Fires 351-353 

148.  Railroad    Fires 353 

149.  Degree  of  Care 353-360 

150.  Animals    360-363 

151.  Domestic   Animals 363-365 

152.  Communicating    Disease 366 

153.  Firearms    367-368 

154.  Explosives    368-369 

155.  Poisons    369-370 

CHAPTER  IX. 

NEGLIGENCE  OF  ATTORNEYS.  PHYSICIANS,  AND  PUBLIC  OFFICERS. 

156.  Negligence  of  Attorneys 371-374 

157.  Damage  Essential  to  Liability 375 

158.  Negligence  of  Physicians 375-378 

159.  Burden  of  Proof— Evidence— Pleading 378-379 

160.  Negligence  of  Public  Officers— Governmental  Officers 379-380 

161.  Ministerial    Officers 380-381 

162.  Sheriffs  and    Constables 381-385 

163.  Notaries    Public 385-387 

164.  Clerks  of  Court  and  Registers  of  Deeds 387-389 

CHAPTER  X. 

DEATH  BY  WRONGFUL  ACT. 

165-166.     Kight   of    Action 390-397 

167.  Instantaneous    Death 397-398 

168.  Proximate  Cause  of  Death 398-402 

169.  Beneficiaries    402-404 

170.  Damages    404-415 

171.  Pleading    415-417 

172.  Evidence    418-419 

173.  Limitation  of  Commencement  of  Action ..419-422 


Xll  TABLE    OF   CONTENTS. 

CHAPTER  XI. 

NEGLIGENCE  OF  MUNICIPAL  CORPORATIONS. 

Section  Page 

174-175.     Public  and  Private  Corporations 423—124 

176.  Public  Corporations— Definition 424-425 

177.  Right  of  Action 425-427 

178.  Liability  for  Injuries 428-438 

179.  Alteration  of  Grades 438-440 

180.  Acts  of  Officers  or  Agents 440-444 

181.  Acts  Ultra  Vires 444-448 

182.  Judicial  or  Legislative  Duties 448-451 

183.  Conflagrations  and  Destruction  by  Mobs 451-452 

184.  Public  Health  and  Sanitation 453 

185.  Quasi  Municipal  Corporations 454-457 


HANDBOOK 


ON    THE 


LAW    OF    NEGLIGENCE. 


CHAPTER  I. 

DEFINITION   AND   ESSENTIAL  ELEMENTS. 

1.  Definition. 

2.  Essential  Elements. 
8-4.     Proximate  Cause. 

5.     Efficient,  Intervening,  or  Co-operating  Cause— Definition. 

All  attempts  to  bind  down  and  limit  the  subject  of  this  work  by 
terse  definition  have  necessarily  proved  unsatisfactory.  The  most 
that  can  be  realized  by  an  effort  in  this  direction  is  a  clear  and  con- 
cise grouping  into  a  statement  of  pertinent  words  which  shall  serve 
to  direct  attention  to  the  essential  elements  of  the  conditions  com- 
posing and  embraced  in  the  word  "negligence."  Anything  which  at- 
tempts to  go  beyond  this  ceases  to  be  a  definition,  and  becomes  merely 
descriptive  and  analytical.1 

i  Among  numerous  definitions,  we  note  the  following:  "Actionable  negli- 
gence consists  in  the  neglect  of  the  use  of  ordinary  care  or  skill  towards  a 
person  to  whom  the  defendant  owes  the  duty  of  observing  ordinary  care  and 
skill,  by  which  neglect  the  plaintiff,  without  contributory  negligence  on  his 
part,  has  suffered  injury  to  his  person  or  property."  Also,  in  same  case: 
"Whenever  one  person  is  by  circumstances  placed  in  such  a  position  with 
regard  to  another  that  every  one  of  ordinary  sense  who  did  think  would  at 
once  recognize  that,  if  he  did  not  use  ordinary  care  and  skill  in  his  own  con- 
duct with  regard  to  those  circumstances  he  would  cause  danger  of  injury  to 
the  person  or  property  of  the  other,  a  duty  arises  to  use  ordinary  care  and 
skill  to  avoid  such  danger."  Brett,  M.  R.,  in  Heaven  v.  Fender,  11  Q.  B.  Div. 
506.  "The  omitting  to  do  something  that  a  reasonable  man  would  do,  or  the 
BAR.NEG.— 1 


2  DEFINITION    AND    ESSENTIAL   ELEMENTS.  (Ch.    1 

For  mere  purposes  of  convenience  in  outlining  the  scope  of  this 
work,  and  not  as  a  solution  of  the  difficulty,  or  even  an  improvement 
over  a  dozen  other  definitions,  we  define  actionable  negligence  thus: 

doing  something  which  a  reasonable  man  would  not  do;  and  an  action  may 
be  brought  if  thereby  mischief  is  caused  to  a  third  party,  not  intentionally." 
Alderson,  B.,  in  Blyth  v.  Waterworks  Co.,  25  Law  J.  Exch.  213.  "Negligence, 
in  its  civil  relations,  is  such  an  inadvertent  imperfection,  by  a  responsible 
human  agent,  in  the  discharge  of  a  legal  duty,  as  immediately  produces,  in  an 
ordinary  and  natural  sequence,  a  damage  to  another.  The  inadvertency,  or 
want  of  due  consideration  of  duty  is  the  injuria,  on  which,  when  naturally 
followed  by  the  dainnum,  the  suit  is  based."  Whart.  Neg.  §  3.  "Negligence 
is  the  failure  to  do  what  a  reasonable  and  prudent  person  would  ordinarily 
have  done  under  the  circumstances  of  the  situation,  or  doing  what  such  a 
person,  under  the  existing  circumstances,  would  not  have  done.  The  essence 
of  the  fault  may  lie  in  omission  or  commission."  Swayne,  J.,  in  Baltimore  & 
P.  R.  Co.  v.  Jones,  95  U.  S.  439,  at  page  442.  "Negligence  constituting  a 
cause  of  civil  action  is  such  an  omission,  by  a  responsible  person,  to  use  the 
degree  of  care,  diligence,  and  skill  which  it  was  his  legal  duty  to  use  for  the 
protection  of  another  person  from  injury,  as,  in  a  natural  and  continuous 
sequence,  causes  unintended  damage  to  the  latter."  Shear.  &  R.  Neg.  §  3. 
"Negligence  is  any  lack  of  carefulness  in  one's  conduct,  whether  in  doing  or 
abstaining  from  doing,  wherefrom,  by  reason  of  its  not  fulfilling  the  measure 
of  the  law's  requirement  in  the  particular  circumstances,  there  comes  to  an- 
other a  legal  injury  to  which  he  did  not  himself  contribute  by  his  own  want 
of  carefulness  or  other  wrong."  Bish.  Noncont.  Law,  §  436.  "Some  relation 
of  duty,  public  or  private,  special  or  general,  must  exist,  either  by  contract  or 
as  an  implication  of  public  policy,  before  one  man  becomes  liable  to  another 
for  the  consequences  of  a  careless  act  or  omission  on  the  part  of  the  first 
man  which  causes  injury  to  the  second  man;  and  when  such  duty  does  exist, 
and  such  careless  act  or  omission  occurs,  causing  an  injury  in  direct  and  reg- 
ular sequence,  the  careless  act  becomes,  in  the  eyes  of  the  law,  actionable  neg- 
ligence, for  which  the  party  injured  has  a  right  of  action  against  the  person 
inflicting  the  injury."  Pol.  Torts,  352.  "Negligence,  in  law,  is  a  breach  of 
duty,  unintentional,  and  proximately  producing  injury  to  another  possessing 
equal  rights."  Smith,  Neg.  1.  See,  also,  definitions  in  following  cases:  Texas 
&  P.  Ry.  Co.  v.  Murphy,  46  Tex.  356;  Baltimore  &  P.  R.  Co.  v.  Jones,  95  U.  S. 
442;  Gardner  v.  Heartt,  3  Denio  (N.  Y.)  232,  at  page  236;  Tonawanda  R.  Co.  v. 
Munger,  5  Denio  (N.  Y.)  255;  Brown  v.  Railway  Co.,  49  Mich.  153,  13  N.  W. 
494;  Northern  Cent.  Ry.  Co.  v.  State,  29  Md.  420;  Philadelphia,  W.  &  B.  R.  Co. 
v.  Stinger,  78  Pa.  St.  225;  Barber  v.  Town  of  Essex,  27  Vt.  62;  Elaine  v.  Rail- 
road Co.,  9  W.  Ya.  252;  Fletcher  v.  Railroad  Co.,  1  Allen  (Mass.)  9;  Cayzer  v. 
Taylor,  10  Gray  (Mass.)  274;  Frankford  &  B.  Turnpike  Co.  v.  Philadelphia  &  T. 
R.  Co.,  54  Pa.  St.  345;  Kelsey  v.  Barney,  12  N.  Y.  425;  Unger  v.  Railway  Co., 
51  N.  Y.  497;  Grant  v.  Moseley,  29  Ala.  302;  Pennsylvania  R.  Co.  v.  Matthews, 


§    2)  ESSENTIAL    ELEMENTS. 


DEFINITION. 

1.  The  inadvertent    failure   to    perform   a  noncontractual 

duty,  to  the  logically  consequent  damage  of  a  third 
person. 

ESSENTIAL  ELEMENTS. 

2.  The  essential  elements  are  at  once  discerned: 
(a)  A  legal  duty. 

(b    Failure  in  performance. 

(c)  Inadvertence. 

(d)  Damage. 

It  is,  of  course,  assumed  that  the  neglector  is  a  legally  responsible 
person,  otherwise  a  legal  duty  could  not  be  predicated  of  his  conduct. 

The  Legal  Duty. 

The  duty  violated  must  be  one  recognized  by  law;  that  is,  one 
which  the  law  requires  to  be  done  or  forborne,  either  towards  the 
public  or  a  particular  person.  With  every  duty  there  is,  of  course, 
a  corresponding  right  to  compel  its  enforcement.  But,  as  used  in 
the  definition,  the  term  "duty"  must  be  greatly  contracted  in  its  ap- 
plication, for  not  every  failure  to  perform  a  legal  duty,  although  the 
other  elements  of  negligence  may  be  present,  will  constitute  action- 
able negligence.  E.  g.  it  is  the  legal  duty  of  the  maker  of  a  prom- 
issory note  to  pay  the  same  at  maturity.  The  matter  may  entirely 
escape  his  mind,  and  the  nonpayment  damage  the  holder  much  be- 
yond the  amount  for  which  the  note  was  made,  yet  no  action  for  neg- 
ligence would  lie. 

36  N.  J.  Law,  531;  Bizzell  v.  Booker,  16  Ark.  308;  Chicago,  B.  &  Q.  R.  Co.  v. 
Johnson,  103  111.  512,  521;  Great  Western  R.  Co.  v.  Haworth,  39  111.  340,  353; 
Carter  v.  Railroad  Co.,  19  S.  C.  20,  24;  Kerwhaker  v.  Railroad  Co.,  3  Ohio  St. 
172;  Galloway  v.  Railway  Co.,  87  Iowa,  458,  54  N.  W.  447;  Texas  &  P. 
Ry.  Co.  v.  Gorman,  2  Tex.  Civ.  App.  144,  21  S.  W.  158;  Moulder  v.  Railroad 
Co.,  1  Ohio  N.  P.  361;  Texas  &  P.  Ry.  Co.  v.  Curlin,  13  Tex.  Civ.  App.  505, 
36  S.  W.  1003;  Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v.  Hannig,  91  Tex.  347, 
43  S.  W.  508;  Irvin  v.  Railway  Co.  (Tex.  Civ.  App.)  42  S.  W.  661;  Missouri, 
K.  &  T.  Ry.  Co.  of  Texas  v.  Webb  (Tex.  Civ.  App.)  49  S.  W.  526;  Yaughan  v. 
Railroad  Co.,  5  Hurl.  &  N.  GS7. 


4  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Ch.   1 

The  duty  violated  must  be  noncontractual  between  the  parties, 
implied  or  expressly  created  by  law.  When  the  minds  of  two  parties 
meet,  and  they  mutually  agree  to  govern  their  conduct  in  accordance 
with  expressed  stipulations,  any  breach  of  that  agreement  is  refer- 
able for  adjustment  to  the  contract.  But  the  affairs  of  mankind  are 
so  intricate,  and  human  nature  so  selfish,  the  tendency  to  jostle  and 
crowrd  so  ingrained  in  every  class  of  society  and  business,  that  lawr 
by  implication  and  statute,  is  compelled  to  direct  and  check  the  in- 
dividual at  every  turn,  and  to  impress  on  him  that  he  is  not  absolute- 
ly unrestricted  in  the  enjoyment  of  his  property;  that  "sic  utere  tuo  ut 
alienum  non  laedas." 

The  duty  must  be  owing  from  the  defendant  to  the  plaintiff,  other- 
wise there  can  be  no  negligence,  so  far  as  the  plaintiff  is  concerned.1 
Moreover,  it  should  be  borne  in  mind  that  there  can  be  no  duty  to  do 
an  act  unless  one  has  a  right  to  do  it,2  and  the  duty  must  be  owing  to 
plaintiff  in  an  individual  capacity,  and  not  merely  as  one  of  the  general 
public.8 

Same — Breach  of  Moral  Duty  Insufficient. 

This  excludes  from  actionable  negligence  all  failures  to  observe  the 
obligations  imposed  by  charity,  gratitude,  generosity,  and  the  kindred 
virtues.  The  moral  law  would  obligate  an  attempt  to  rescue  a  per- 
son in  a  perilous  position, — as  a  drowning  child, — but  the  law  of  the 
land  does  not  require  it,  no  matter  how  little  personal  risk  it  might 
involve,  provided  that  the  person  who  declines  to  act  is  not  respon- 
sible for  the  peril. 

Failure  in  Performance. 

The  breach  of  duty  may  consist  in  the  omission  to  perform  a  posi- 
tive duty,  or  in  the  commission  of  an  act  which  is  forbidden.  Austin 

§§  1-2.  i  Hofnagle  v.  Railroad  Co.,  55  N.  Y.  608;  Gross  v.  Railway  Co.r 
73  111.  App.  217. 

a  Carpenter  v.  City  of  Cohoes,  81  N.  Y.  21;  Veeder  v.  Village  of  Little  Falls, 
100  N.  Y.  343,  3  N.  E.  306  (city  held  not  liable  for  not  putting  fences  on  high- 
way belonging  to  state). 

s  Peck  v.  Village  of  Batavia,  32  Barb.  634  (action  against  city  for  negligence 
in  failing  to  keep  bridge  in  repair);  City  of  Albany  v.  Cunliff,  2  N.  Y.  165; 
Blagrave  v.  Waterworks  Co.,  1  Hurl.  &  N.  369  (defendant  blocked  highway, 
and  compelled  public  to  cross  plaintiff's  land  in  order  to  get  by  the  obstruc- 
tion). 


:§    2)  ESSENTIAL    ELEMENTS.  5 

says  :4  "The  party  who  is  negligent  omits  an  act  and  breaks  a 
positive  duty;  the  party  who  is  heedless  does  an  act  and  breaks  a 
negative  duty."  This  distinction  is  metaphysical,  and  of  no  practical 
value.  Failure  in  performance  will  be  discussed  at  greater  length 
Tiereafter.  For  the  present  analysis,  it  is  sufficient  to  state  that  in 
general  the  breach  of  duty  consists  in  the  failure  to  use  the  kind  of 
•care  usually  exercised  by  competent,  prudent  persons,  in  sufficient 
numbers  to  form  a  class,  in  similar  transactions. 

Inadvertence. 

The  failure  to  perform  the  required  duty  must  be  inadvertent. 
'This  is  implied  in  the  word  "negligence"  itself.  Austin  distinguishes 
"between  "negligence"  and  "heedlessness,"  but  admits  that  the  words 
indicate  precisely  the  same  state  of  mind.  'In  either  case  the  party 
is  inadvertent.  In  the. first  case  he  does  not  an  act  which  he  was 
bound  to  do,  because  he  adverts  not  to  it;  in  the  second  case  he  does 
an  act  which  he  wras  bound  to  forbear,  because  he  adverts  not  to  cer- 
tain of  its  probable  consequences.  Absence  of  a  thought  which  one's 
duty  would  naturally  suggest  is  the  main  ingredient  in  each  of  the  com- 
plex notions  which  are  styled  'negligence'  and  'heedlessness.'  *  *  * 
'The  party  who  is  guilty  of  rashness  thinks  of  the  probable  mischief,  but 
in  consequence  of  a  misapprehension,  begotten  by  insufficient  advert- 
ence, he  assumes  that  the  mischief  will  not  ensue  in  the  given  in- 
stance or  case.  *  *  *"  5  It  is  immaterial  how  we  define  and  dis- 
tinguish the  various  mental  conditions  implied  by  these  different 
terms.  Each  carries  the  characteristics  of  inadvertence, — the  fail- 
ure to  connect  the  act  with  the  result;  and  the  culpability  of  the 
defendant  lies  equally  in  each,  being  referable  to  his  want  of  due  con- 
sideration for  his  duty. 

Same — "Heedlessness"  and  "Malice"  Distinguished. 

Although  the  term  "willful  negligence"  is  paradoxical,  authorities 
are  not  entirely  wanting  who  sanction  its  use.6  It  is  probable,  as 

*  Aust.  Jur.  (3d  Ed.)  1440. 

e  Id. 

«  Peoria  Bridge  Ass'n  v.  Loomis,  20  111.  235,  71  Am.  Dec.  263;  Toledo,  W. 
.&  W.  Ry.  Co.  v.  Beggs,  85  111.  80;  Holmes  v.  Railway  Co.,  48  Mo.  App.  79; 
Hancock  v.  Railroad  Co.  (Ind.  App.)  51  N.  E.  369;  Jacksonville  S.  E.  Ry. 
Co.  v.  South  worth,  135  111.  250,  25  N.  E.  1093;  Chicago  &  N.  W.  R.  Co.  v. 
-Chapman,  30  111.  App.  504;  Chesapeake  &  O.  Ry.  Co.  v.  Yost  (Ivy.)  2'J  S.  W. 


6  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Gil.    i 

suggested  by  Mr.  Smith,7  that  in  many  instances  "willful"  is  used  to 
mean  only  "reckless,"  but  the  explanation,  if  true,  in  no  degree  ex- 
cuses the  use  of  the  word  when  applied  to  negligence.  Moreover,  to 
say  that  cases  of  negligence,  as  they  arise  in  practice,  and  as  found  in 
reports,  are  not  determined  by  theoretical  considerations,8  is  beside 
the  issue.  It  is  on  the  line  of  practical  treatment  that  we  insist 
the  distinction  should  be  drawn.  It  is  true  that  in  many  cases  it  is 
immaterial,  as  to  the  justice  of  the  verdict,  whether  the  act  com- 
plained of  is  really  willful  or  merely  inadvertent,  but  in  very  many 
more  the  question  of  intent  is  vital  to  the  issue.  "The  distinction 
between  'negligence'  and  'willful  tort'  is  important  to  be  observed,  not 
only  in  order  to  avoid  a  confusion  of  principles,  but  it  is  necessary  in 
determining  the  question  of  damages,  since,  in  case  of  an  injury  by 

326.  In  Cleveland,  C.,  C.  &  I.  Ry.  Co.  v.  Asbury,  120  Ind.  289,  22  N.  E. 
140,  the  complaint  alleged  "wanton"  and  "willful"  negligence,  and  "intention 
to  injure"  plaintiff,  but  the  court  held  the  gist  of  the  action  to  be  simple  negli- 
gence, and  sustained  the  complaint.  Also,  see  Louisville  &  N.  R.  Co.  v.  Mitch- 
ell, 87  Ky.  327,  8  S.  W.  706;  Hays  v.  Railway  Co.,  70  Tex.  602,  606,  8  S.  W.  491. 
Whitt.  Smith,  Neg.  p.  3:  "If  an  act  be  intentional,  it  becomes  fraudulent  and 
criminal,  or  it  may  be  a  trespass.  *  *  *  'Intentional  negligence,'  a  phrase 
sometimes  used,  seems  to  involve  a  contradiction  in  terms.  So,  also,  the  words 
'willful  negligence'  are  often  used,  where,  if  by  'willful'  is  meant  'intentional/ 
the  same  objection  applies;  but  if  by  'willful'  only  'recklessness'  is  meant,  the 
phrase  'willful  negligence'  seems  unobjectionable."  Actions  for  "willful"  and 
"wanton"  negligence  are  frequently  brought.  Kentucky  Cent.  R.  Co.  v. 
Gastineau's  Adm'r,  83  Ky.  119.  Willful  neglect  in  this  case  is  defined  as 
an  intentional  failure  to  perform  a  manifest  duty  in  which  the  public  has 
an  interest,  or  which  is  important  to  the  person  injured  in  either  preventing 
or  avoiding  the  injury.  Newport  News  &  Mississippi  Val.  Co.  v.  Dentzel's 
Adm'r,  91  Ky.  42,  14  S.  W.  958.  In  some  cases  knowledge  of  probable  conse- 
quences is  held  equivalent  to  willfulness,  and  a  consciousness  must  exist  that 
the  conduct  will  almost  surely  result  in  an  injury.  Georgia  Pac.  Ry.  Co.  v. 
Lee,  92  Ala.  262,  9  South.  230;  Richmond  &  D.  R.  Co.  v.  Vance,  93  Ala.  144, 
9  South.  574.  It  has  been  held  that  to  run  a  locomotive  in  the  dark,  along  a 
frequented  road,  at  a  high  and  dangerous  rate  of  speed,  without  a  headlight, 
and  without  ringing  the  bell,  is  evidence  sufficient  to  establish  willful  neg- 
ligence. East  St.  Louis  Connecting  Ry.  Co.  v.  O'Hara,  49  111.  App.  282,  affirmed 
in  150  111.  580,  37  N.  E.  917.  Again,  in  Chesapeake  &  O.  Ry.  Co.  v.  Yost 
(Ky.)  29  S.  W..326,  it  was  said  that  the  term  "willful  neglect"  applied  only  to 
actions  for  loss  of  life  involving  punitive  damages. 

T  Whitt.  Smith,  Neg.  p.  3. 

8  Pigg.  Torts,  208. 


§    2)  ESSENTIAL   ELEMENTS.  7 

the  former,  damages  can  only  be  compensatory,  while  in  the  latter 
they  may  also  be  punitory,  vindictive,  or  exemplary.9  The  distinction 
is  also  needful  because  of  the  defenses  which  may  be  set  up.  Con- 
tributory negligence  of  the  plaintiff  is  no  bar  to  an  action  for  a  willful 
tort,  though  it  is  a  complete  bar  to  an  action  for  negligence."  10 

From  a  consideration  of  the  cases  it  seems  probable  that  the  words 
"willful,"  "malicious,"  and  others  indicating  a  wrongful,  deliberate 
intention,  are  often  coupled  with  the  word  "negligence"  by  the  courts, 
and  thus  used  to  designate  what  they  would  term  "gross  negligence" ; 
the  recovery  being  limited  to  the  immediate  or  proximate  results  of 
the  wrongful  act.  And  again  "gross  negligence"  is  made  sufficiently 
elastic  to  include  acts  mala  in  se,  and  thus  support  a  verdict  for  re- 
mote damages,  as  for  a  willful  tort.  This  inaccuracy  is  to  be  re- 
gretted, for  its  evil  consequences  are  far-reaching.  Decisions  thus 
made  are  quoted,  as  authorities,  and  serve  to  sustain  recovery  for 
simple  negligence,  where  the  cause  was  remote,  and  also  to  allow  the 
wrongdoer  to  escape  the  just  penalty  for  an  act  which  is  malum  in  se, 
and  not  "gross  negligence." 

In  criminal  as  well  as  in  civil  actions  the  term  "negligence"  is 
made  to  include  both  "heedlessness"  and  "rashness,"  provided  always 
that  the  element  of  evil  design  is  not  injected  to  change  the  mental 
condition  of  mere  inadvertence  into  malicious  intent. 

This  mental  condition  involving  malice — the  intent  that  harm 
should  flow  from  the  act  or  omission — was  clearly  recognized  by  the 
Roman  law  under  the  term  "dolus."  Theoretically,  at  least,  the  pres- 
ence of  malicious  intent  is  fatal  in  an  action  for  negligence.  If  the 
malice  is  pleaded,  it  must  be  shown.  Proof  of  mere  negligence  will 

9  Walrath  v.  Redfield,  11  Barb.  (N.  Y.)  368;   1  Suth.  Darn.  724;   Day  v.  Wood- 
worth,    13    How.    3G3.     The   recovery    of   punitive    or    vindictive  .damages    is 
allowed  only  where  the  act  causing  the  injury  has  been  willfully  done,  or  where 
the  circumstances  indicate  that  there  was  a  deliberate,  preconceived,  or  posi- 
tive intention  to  injure,  or  show  that  reckless  disregard  of  person  or  prop- 
erty which  is  equally  culpable.     Wallace  v.  Mayor,  etc.,  2  Hilt.  (N.  Y.)  440; 
Moody  v.  McDonald,  4  Cal.  297. 

10  Derby's  Adm'r  v.  Kentucky  Cent.  R.  Co.  (Ky.)  4  S.  W.  303;    McMahon 
v.  Davidson,  12  Minn.  357  (Gil.  232).     In  Carroll  v.  Railroad  Co.,  13  Minn.  30 
(Gil.  18),  McMillan,  J.,  says:    "It  is  a  well-settled  rule  that,  although  the  de- 
fendant may  be  guilty  of  negligence,  unless  there  was  some  intentional  wrong 
on  his  part,  the  plaintiff  cannot  recover  for  an  injury  to  which  he  himself  has 
contributed." 


8  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Ch.   1 

not  sustain  a  verdict.11  On  the  other  hand,  it  not  infrequently  hap- 
pens that  under  a  complaint  for  negligence  proper  the  evidence  elicit- 
ed shows  clearly  the  willfulness  of  the  act  or  omission.  The  develop- 
ment of  this  element  at  the  trial  cannot  nonsuit  the  plaintiff.  The 
greater  includes  the  less.  He  has  overproved  his  case,  and  it  will 
not  be  allowed  to  react  to  the  injury  of  his  claim.  But,  on  the  other 
hand,  the  plaintiff  should  not,  in  such  an  event,  be  allowed  to  make 
use  of  this  element  of  malice  for  the  purpose  of  influencing  the  jury, 
and  securing  greater  damages  than  should  be  awarded  in  strict  con- 
formity to  the  pleaded  case. 

It  follows,  as  a  corollary  to  what  has  just  been  said,  that,  if  malice 
has  not  been  specifically  pleaded  in  the  complaint,  direct  proof  of  such 
intent  is  inadmissible  at  the  trial.12 

Damage. 

The  damage  must  be  a  logical  consequence;  the  injury  complained 
of  must  follow  the  breach  of  duty  in  an  ordinary  and  natural  sequence. 

Much  of  the  confusion  which  exists  in  the  discussion  of  principles, 
and  many  of  the  apparent  conflicts  in  reported  cases,  arise  from  an 
inaccurate  use  of  terms.  The  Latin  language  was  peculiarly  adapted 
to  exact  definition,  and  the  Romans  themselves  were  strict  and  uni- 
form in  their  employment  of  legal  terms.  On  the  other  hand,  the 
English  language  is  proverbially  loose  and  inexact,  and  the  employ- 
ment of  many  of  the  Latin  terms  therefore  becomes  not  only  con- 
venient, but  in  many  cases  absolutely  essential  to  distinct  expression 
in  legal  analysis.  Unless,  however,  the  original  and  precise  meaning 
of  terms  thus  incorporated  is  carefully  preserved,  confusion  and  mis- 
understanding inevitably  result.  For  the  double  purpose,  therefore, 

11  Indiana,  B.  &  W.  Ry.  Co.  v.  Burdge,  94  Ind.  46;   Hancock  v.  Railway  Co. 
(Ind.  App.)  51  N.  E.  369;    Pennsylvania  Co.  v.   Smith,  98  Ind.  42.     In  this 
case  the  complaint  alleged  that:    "*     *     *     defendant's  engineer  on  said  train, 
In  a  willful,  reckless,  careless,  and  unlawful  manner,  let  on  such  a  volume  of 
steam  to  the  engine  as  caused  said  train  to  jump,"  etc.     The  court  says:    "The 
principal  question  arising  on  the  motion  for  a  new  trial  is,  was  the  verdict 
sustained  by  sufficient  evidence?    A  verdict  cannot  be  disturbed  where  there 
is  any  competent  evidence  tending  to  support  it.     Under  the  allegations  of 
the  complaint  here,  there  could  be  no  recovery  unless  the  injury  was  proved 
to  have  been  willful.    We  think  there  was  no  evidence  tending  to  show  a 
willful  injury." 

12  Pennsylvania  Co.  v.  Smith,  98  Ind.  42. 


•§§    3-4)  PROXIMATE    CAUSE.  9 

of  exactness  and  convenience,  it  is  necessary  to  call  attention  to  the 
distinction  between  the  "injuria"  and  the  "damnum,"  both  of  which 
must  be  present  in  every  case  of  actionable  negligence.  These  terms 
will  be  used  frequently  hereafter  in  their  strict  application. 

Same — "Iiywria"  and  "Damnum"  Distinguished. 

Injuria  does  not  mean  injury  or  mischief.  In  its  derivative  sense 
it  means  unlawfulness ;  in  its  legal  adoption  it  embodies  whatever  is 
done  contrary  to  law.  Damnum  is  legal  mischief  flowing  in  a  direct 
.and  natural  sequence  from  the  injuria.  Theoretically,  at  least,  every 
fracture  of  the  law — injuria — must  be  productive  of  damnum  or 
Tiarm ;  but  the  converse,  viz.  that  every  damnum  or  harm  is  the  result 
of  injuria,  is  'not  true.  Damnum  may  occur  without  injuria.  Thus, 
the  harm  done  another  by  the  willful  destruction  of  his  property  is 
damnum,  and,  in  the  abstract  sense,  a  law  is  violated;  but  in  the  con- 
crete act  under  consideration  it  may  well  be  that  the  circumstances 
excused  the  performer, — as,  in  the  event  of  a  conflagration  in  a  city, 
the  blowing  up  of  buildings  to  prevent  the  spread  of  the  fire  is  upheld 
.and  sanctioned  by  law  as  a  necessity  to  avert  greater  loss.18 

PROXIMATE  CAUSE. 

3.  Negligence  being  proved,  the  relation  of  cause  and  ef- 

fect must  be  established,  directly  connecting  the 
breach  of  duty  -with  the  injury  to  plaintiff. 

4.  A  proximate  cause  may  be  denned  as  one  which,  oper- 

ating in  accordance  with  natural  laws,  in  a  con- 
tinuous sequence,  is  the  main  factor  in  producing 
the  event  in  question. 

It  has  been  sometimes  said  that  a  person  is  not  liable  for  an  in- 
jury which  he  cannot  foresee  as  the  result  of  his  act,1  but  this  is  cer- 
tainly not  true.  The  case  of  Blyth  v.  Birmingham  Waterworks  2 
has  been  often  cited  as  supporting  this  doctrine,  but  we  are  unable 

!3  Respublica  v.  Sparhawk,  1  Dall.  357;  Maleverer  y.  Spinke,  1  Dyer,  36; 
Smith  v.  City  of  Rochester,  76  N.  Y.  506;  Neuert  v.  City  of  Boston,  120  Mass. 
-338.  And  see  post,  p.  452. 

§§  3-4.     i  Whitt.  Smith,  Xeg.  p.  24. 

2  Law  J.  11  Exch.  781. 


10  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Ch.    1 

so  to  interpret  this  decision.  In  the  case  of  Smith  v.  London  &  S.  W. 
R.  Co.,3  Channel!,  B.,  said:  "Where  there  is  no  direct  evidence 
of  negligence,  the  question  what  a  reasonable  man  might  foresee  is 
of  importance  in  considering  the  question  whether  there  is  evidence 
for  the  jury  of  negligence  or  not;  and  this  is  what  was  meant  by 
Bramwell,  B.,  in  his  judgment  in  Blyth  v.  Birmingham  Waterworks 
Co.;  *  *  *  but,  where  it  has  been  once  determined  that  there  is 
evidence  of  negligence,  the  person  guilty  of  it  is  equally  liable  for  its 
consequences,  whether  he  could  have  foreseen  them  or  not."  In  the 
case  of  Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg 4  the  court  say :  "It  is 
admitted  that  the  rule  is  difficult  of  application.  But  it  is  generally 
held  that,  in  order  to  warrant  a  finding  that  negligence,  or  an  act  not 
amounting  to  wanton  wrong,  is  the  proximate  cause  of  an  injury,  it 
must  appear  that  the  -injury  was  the  natural  and  probable  conse- 
quence of  the  negligence  or  wrongful  act,  and  that  it  ought  to  have- 
been  foreseen  in  the  light  of  the  attending  circumstances."  In  this 
and  many  other  decisions,5  which  may  be  regarded  as  leading,  it  will 

s  L.  E.  6  C.  P.  21. 

*  94  U.  S.  469,  475. 

s  Hoag  v.  Railroad  Co.,  85  Pa.  St.  293:  "A  man's  responsibility  for  his 
negligence  and  that  of  his  servants  must  end  somewhere.  There  is  a  possibil- 
ity of  carrying  an  admittedly  correct  principle  too  far.  *  *  *  The  true  rule 
is  that  the  injury  must  be  the  natural  and  probable  consequence  of  the  negli- 
gence; such  a  consequence  as,  under  the  surrounding  circumstances  of  the 
case,  might  and  ought  to  have  been  foreseen  by  the  wrongdoer  as  likely  ta 
flow  from  his  act."  See,  also,  Pol.  Torts,  36,  37;  Pittsburgh  Southern  Ry.  Co. 
v.  Taylor,  104  Pa.  St  306;  Jacksonville,  T.  &  K.  W.  Ry.  Co.  v.  Peninsular 
Land,  Transp.  &  Mfg.  Co.,  27  Fla.  1,  157,  9  South.  661;  Deisenrieter  v.  Malt- 
ing Co.,  97  Wis.  279,  72  N.  W.  735;  Schneider  v.  Railway  Co.,  99  Wis.  378,  75 
N.  W.  169;  Motey  v.  Granite  Co.,  20  C.  C.  A.  366,  74  Fed.  155.  In  McGrew 
v.  Stone,  53  Pa.  St.  436,  the  language  of  the  court  is  still  stronger:  "Within 
the  probable  range  of  ordinary  circumspection."  In  Milwaukee  &  St.  P.  Ry. 
Co.  v.  Kellogg,  94  U.  S.  469,  plaintiff's  property,  a  sawmill,  was  destroyed  by 
fire  alleged  to  have  been  negligently  caused  by  defendant  in  the  operation  of 
its  steamboat.  The  testimony  tended  to  show  that  defendants'  steamboat  set 
fire  to  defendants'  elevator,  and  that  the  fire  was  thence  communicated  to 
plaintiff's  mill.  At  the  time  of  the  fire  a  strong  wind  was  blowing  from  the 
elevator  towards  the  mill,  which  was '538  feet  distant,  and  towards  plaintiff's 
lumber,  the  nearest  pile  of  which  was  388  feet  distant.  The  supreme  court 
held  that  it  was  not  error  on  the  part  of  the  trial  court  to  refuse  to  charge 
as  follows:  "If  they  believed  the  sparks  from  the  Jennie  Brown  set  fire  to  the 


§§    3-4)  PROXIMATE    CAUSE.  11 

be  observed  that  the  language  is,  "ought  to  have  been  foreseen."  This 
theory  is  substantially  sustained  by  a  long  line  of  decisions,  in  which 
the  courts  seemingly  hold  that  the  result  must  be  so  intimately  con- 
nected with  the  cause,  in  a  direct  and  natural  sequence  of  events, 
that  a  man  of  ordinary  prudence  and  intelligence  would  actually  have 
foreseen  some  injurious  result,  although  not  necessarily  the  one  that 
did  ensue.6 

elevator  through  the  negligence  of  the  defendants,  and  the  distance  of  the 
elevator  from  the  nearest  lumber  pile  "was  three  hundred  and  eighty-eight  feet, 
and  from  the  mill  five  hundred  and  thirty-eight  feet,  then  the  proximate 
cause  of  the  burning  of  the  mill  and  lumber  was  the  burning  of  the  elevator, 
and  the  injury  was  too  remote  from  the  negligence  to  afford  a  ground  for  a 
recovery."  The  court  then  goes  on  to  say:  "The  true  rule  is  that  what  is  the 
proximate  cause  of  an  injury  is  ordinarily  a  question  for  the  jury.  It  is  not 
a  question  of  science  or  of  legal  knowledge.  It  is  to  be  determined  as  a 
fact,  in  view  of  the  circumstances  of  fact  attending  it.  The  primary  cause 
may  be  the  proximate  cause  of  a  disaster,  though  it  may  operate  through  suc- 
cessive instruments,— as  an  article  at  the  end  of  a  chain  may  be  moved  by  a 
force  applied  to  the  other  end,  the  force  being  the  proximate  cause  of  the 
movement;  or  as  in  the  oft-cited  case  of  the  squib  thrown  in  the  market 
place.  The  question  always  is,  was  there  an  unbroken  connection  between 
the  wrongful  act  and  the  injury,— a  continuous  operation?  Did  the  facts  con- 
stitute a  continuous  succession  of  events,  so  linked  together  as  to  make  a 
natural  whole,  or  was  there  some  new  and  independent  cause  intervening  be- 
tween the  wrong  and  the  injury?" 

e  Louisville  &  N.  R.  Co.  v.  Guthrie,  10  Lea  (Tenn.)  432;  West  Mahanoy  Tp. 
v.  Watson.  112  Pa.  St.  574,  3  Atl.  8G6;  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Locke, 
112  Ind.  404,  14  N.  E.  391;  McClary  v.  Railroad  Co.,  3  Neb.  44;  Atkinson  v. 
Transportation  Co.,  60  Wis.  141,  18  X.  W.  764;  Toledo,  W.  &  W.  Ry.  Co.  v. 
Muthersbaugh,  71  111.  572;  Tutein  v.  Hurley,  98  Mass.  211;  Lane  v.  Atlantic 
Works.  Ill  Mass.  136;  Hill  v.  Winsor,  118  Mass.  251;  Campbell  v.  City  of 
Stillwater,  32  Minn.  30$,  20  N.  W.  320;  McDonald  v.  Snelling,  14  Allen  (Mass.) 
290;  Scheffer  v.  Railroad  Co.,  105  U.  S.  249;  Pittsburgh  Southern  Ry.  Co.  v. 
Taylor,  104  Pa.  St.  306;  Ward  v.  Weeks,  7  Bing.  211  (slander);  Greenland  v. 
Chaplin,  5  Exch.  243;  Clark  v.  Chambers,  3  Q.  B.  Div.  327;  Illidge  v.  Goodwin, 
5  Car.  &  P.  190;  Coley  v.  City  of  Statesville,  121  N.  C.  301,  28  S.  E.  482. 
In  Glover  v.  Railroad  Co.,  L.  R.  3  Q.  B.  25,  a  counter,  which  had  been  left 
for  some  time  on  the  sidewalk,  unexpectedly  fell,  and  killed  a  child.  There 
was  no  doubt  that  the  child's  death  was  the  proximate  and  direct  result  of 
defendant's  action  in  leaving  the  counter  where  he  did,  but  it  was  decided 
that  he  had  not  been  negligent  in  so  doing,  and  therefore  no  recovery  could  be 
had  for  the  injury.  Pol.  Torts,  pp.  36,  37:  "It  follows  that  if,  in  a  particu- 
lar case,  the  harm  complained  of  is  not  such  as  a  reasonable  man  in  the 


12  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Ch.    1 

Te  t  of  Negligence  must  not  be  Used  as  Test  of  Proximate  Cause. 

In  attempting  to  distinguish  between  the  decisions  that  follow  the 
doctrine  laid  down  in  Smith  v.  London  &  S.  W.  K.  Co.  and  those  that 
adopt  the  principle  enunciated  in  Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg 
it  should  be  observed  that  in  many  of  the  latter  class  there  was  no 
direct  evidence  of  negligence  or  breach  of  duty  on  the  part  of  defend- 
ant, but,  instead  of  subjecting  the  original  act  of  the  defendant  to 
the  test  of  proper  care,  they  apply  this  same  test  to  the  result  of  his 
act,  in  order  to  determine  the  relation  of  cause  and  effect.  The  argu- 
ment shapes  itself  something  like  this:  The  injury  could  not  have 
been  foreseen  by  the  use  of  proper  care;  therefore  the  lack  of  proper 
care  cannot  be  its  proximate  cause.  The  inquiry  should  be  conducted 
something  as  follows:  Was  proper  care  observed  in  the  circumstan- 
ces? And  in  determining  this  question  reference  must  be  had  to 
possible  injurious  results  happening  to  any  one.  If  answered  in  the 
affirmative,  the  case  falls  to  the  ground,  for  there  can  be  no  recovery. 
If  answered  in  the  negative,  it  must  then  be  asked,  does  the  injury 
complained  of  fall  within  the  class  of  results  contemplated  as  possi- 
ble in  testing  the  degree  of  care  required  of  the  defendant?  and,  lastly, 
is  the  particular  injury  a  regular  and  natural  consequence  of  defend- 
ant's negligence? 

It  must  be  kept  in  mind  that  a  breach  of  duty  is  essential  to  a  re- 
covery in  an  action  for  negligence.  Harm  may  result  directly  from 
a  nonnegligent  act;  there  may  be  damnum  without  injuria.7  A  per- 
son, in  a  careful  and  prudent  manner,  attempts  to  separate  two  dogs 
which  are  fighting,  and  accidentally  injures  plaintiff.8  Here  the  de- 
defendant's  place  should  have  foreseen  as  likely  to  happen,  there  is  no  wrong 
and  no  liability."  In  attempting  to  distinguish  between  these  cases  and  those 
which  follow  the  rule  laid  down  in  Smith  v.  Railroad  Co.,  viz.:  "Where  there 
is  evidence  of  negligence,  the  person  guilty  of  it  is  equally  liable  for  the  con- 
sequences, whether  he  could  have  foreseen  them  or  not,"— it  should  be  observed 
that  in  many  of  the  preceding  and  similar  cases  there  was  no  evidence  of 
negligence  other  than  the  fact  that  the  injury  complained  of  resulted,  more 
or  less  remotely,  from  defendant's  act.  In  other  words,  the  question  to  be 
determined  in  many  of  these  cases  is,  was  defendant  guilty  of  any  negli- 
gence at  all?  and  not,  was  the  injury  the  proximate  result  of  defendant's 
act?  See  City  of  Chicago  v.  Starr,  42  111.  174. 

7  See  ante,  p.  9. 

»  Brown  v.  Kendall,  6  Cush.  (Mass.)  292. 


§§    3-4)  PROXIMATE    CAUSE.  13 

fendant's  act  was  unquestionably  the  proximate  cause  of  the  injury, 
but  it  is  equally  unquestionable  that  no  one  in  defendant's  position 
could  have  foreseen  the  possibility  of  injury  resulting  to  any  one, 
and,  if  he  used  the  proper  degree  of  care  in  attempting  to  separate 
the  dogs,  there  can  be  no  liability.  The  difficulty  experienced  in  lay- 
ing down  a  general  rule  to  cover  every  case  has  led  some  of  the  ablest 
judges  to  decline  to  state  a  fixed  rule.9  -Notwithstanding  these  au- 
thorities, the  tendency  of  the  courts  would  seem  to  be  that,  negligence 
being  established,  the  person  guilty  of  it  is  liable  for  its  consequences, 
whether  they  be  such  as  he  could  or  ought  to  have  foreseen  or  not.1* 

»  Page  v.  Bucksport,  64  Me.  51;  Willey  v.  Inhabitants  of  Belfast,  61  Me. 
569.  Fleming  v.  Beck,  48  Pa.  St.  309  (Agnew,  J.):  "In  strict  logic  it  may  be 
said  that  he  who  is  the  cause  of  loss  should  be  answerable  for  all  the  losses- 
which  flow  from  his  causation.  But  in  the  practical  -workings  of  society  the 
law  finds,  in  this  as  in  a  great  variety  of  other  matters,  that  the  rule  of  logic 
is  impracticable  and  unjust.  The  general  conduct  and  the  reflections  of  man- 
kind are  not  founded  upon  nice  casuistry.  Things  are  thought  and  acted  upon 
rather  in  a  general  way  than  upon  long,  laborious,  extended,  and  trained  in- 
vestigation. Among  the  masses  of  mankind,  conclusions  are  generally  the- 
results  of  hasty  and  partial  reflection.  Their  undertakings,  therefore,  must  be 
construed  in  view  of  these  facts;  otherwise,  they  would  often  be  run  into  a 
chain  of  consequences  wholly  foreign  to  their  intentions.  In  the  ordinary 
callings  and  business  of  life,  failures  are  frequent  Few,  indeed,  always  come 
up  to  a  proper  standard  of  performance,  whether  in  relation  to  time,  quality, 
degree,  or  kind.  To  visit  upon  them  all  the  consequences  of  failure  would  set 
society  upon  edge,  and  fill  the  courts  with  useless  and  injurious  litigation.  It 
is  impossible  to  compensate  for  all  losses,  and  the  law  therefore  aims  at  a  just 
discrimination,  which  will  impose  upon  the  party  causing  them  the  proportion 
of  them  that  a  proper  view  of  his  acts  and  the  attending  circumstances  would 
dictate." 

10  Smith  v.  Railroad  Co.,  L.  R.  6  C.  P.  14.  "The  word  'proximately'  is  to- 
be  distinguished  from  the  word  'culpably.'  An  act,  to  be  culpable,— that  is, 
to  be  a  breach  of  legal  duty,— must,  as  we  have  seen,  be  such  as  a  reasonably 
careful  man  -would  foresee  would  be  productive  of  injury,  and  the  person  i& 
not  liable  for  an  injury  he  could  not  foresee;  but  a  breach  of  duty,  to  be 
proximately  producing  injury,  must  be  such  that,  whether  defendant  could, 
foresee  the  injury  to  be  probable  or  not,  the  breach  of  duty  is  in  fact  the 
probable  cause  of  the  injury."  Smith,  Neg.  *16.  Louisville,  N.  A.  &,  C.  R.. 
Co.  v.  Nitsche,  126  Ind.  229,  26  X.  E.  51,  45  Am.  &  Eng.  R.  Cas.  532  (Elliott, 
J.):  "The  wrong  of  the  appellant  put  in  motion  the  destructive  agency,  and 
the  result  is  directly  attributable  to  that  wrong.  In  this  instance  cause  and 
effect  are  interlinked.  There  is  no  break.  The  chain  is  perfect  and  complete.'^ 


14  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Ch.    1 

The  apparent  severity  of  this  rule  is  modified  when  it  is  considered 
that  the  establishment  of  negligence  is  a  condition  precedent  to  its 
enforcement,  and  in  determining  this  question  of  negligence  the  test 
may  be  applied  whether  the  occurrence  of  some  such  injury  as  that 
suffered  by -plaintiff,  if  seasonably  suggested,  would  not  have  been 
recognized  by  defendant  as  a  possible  consequence  of  his  act.  In 
theory,  at  least,  there  is  no  escape  from  the  conclusion  that  there  is 
no  limit  to  the  liability  of  a  person  for  the  direct,  natural  results  of 
his  negligence.  Consider  the  case  of  a  fire  set  by  defendant's  loco- 
motive. Concede  that  it  occurred  by  reason  of  a  defective  spark 

Baltimore  City  Pass.  Ry.  Co.  v.  Kemp,  61  Md.  74,  619,  18  Am.  &  Eng.  R.  Gas. 
220;  Terre  Haute  &  I.  R.  Co.  v.  Buck,  96  Ind.  346,  18  Am.  &  Eng.  R.  Cas.  234; 
Liming  v.  Railroad  Co.,  81  Iowa,  246,  47  N.  W.  67;  Hess  v.  Mining  Co.,  ITS 
Pa.  St.  239,  35  Atl.  990;  Rosenbaum  v.  Shoffner,  98  Term.  624,  40  S.  W.  1080; 
International  &  G.  N.  R.  Co.  v.  Mclver  (Tex.  Civ.  App.)  40  S.  W.  438;  Webster 
v.  Symes,  109  Mich.  1,  66  N.  W.  580.  In  Lowery  v.  Railway  Co.,  99  N.  Y. 
158,  1  N.  E.  608,  fire  fell  from  defendant's  locomotive  upon  a  horse  attached 
to  a  wagon,  and  also  on  the  driver's  hand.  The  horse  ran  away.  The  driver 
tried  to  stop  him,  and,  failing,  turned  him  onto  the  curb.  The  horse  crossed 
the  curb,  and  injured  plaintiff.  The  court>  said:  "*  *  *  If  he  made  a  mis- 
take of  judgment,  the  defendant  was  not  relieved  of  liability.  We  think 
that  the  damage  sustained  by  the  plaintiff  was  not  too  remote,  and  that  the 
wrongful  act  of  the  defendant  in  allowing  the  coals  to  escape  from  the  locomo- 
tive, thus  causing  the  horse  to  become  frightened  and  run,  was  the  proximate 
•cause  of  the  injury,  and  that  the  running  away  of  the  horse  and  the  collision 
with  the  plaintiff  were  the  natural  and  probable  consequences  of  the  negli- 
gence of  the  defendant."  In  this  case  the  court  attempts  to  distinguish  it 
from  Ryan  v.  Railroad  Co.,  35  N.  Y.  210,  but  it  would  appear  that  the  Ryan 
Case  is  overruled  both  by  this  and  Webb  v.  Railroad  Co.,  49  N.  Y.  420.  An 
instruction  which  attempts  to  define  the  character  and  degree  of  negligence 
which  would  authorize  a  recovery  for  an  injury,  but  which  omits  the  essential 
qualification  that  the  negligence  upon  which  a  recovery  must  be  based  is  such 
as  contributed  to  the  injury,  and  such  alone,  is  erroneous.  Chicago  &  N.  W. 
Ry.  Co.  v.  Carroll,  12  111.  App.  643.  In  Ehrgott  v.  Mayor,  etc.,  96  N.  Y.  264, 
Earl,  J.,  emphatically  refuses  to  recognize  any  limit  of  liability  imposed  by 
inability  to  foresee  the  injurious  consequences.  After  a  vigorous  summary, 
he  concludes  as  follows:  "The  true  rule,  broadly  stated,  is  that  a  wrongdoer 
is  liable  for  the  damages  which  he  causes  by  his  misconduct.  *  *  *  The 
best  statement  of  this  rule  is  that  a  wrongdoer  is  responsible  for  the  natural 
and  proximate  consequences  of  his  misconduct,  and  what  are  such  consequences 
must  generally  be  left  for  the  determination  of  the  jury."  But  see  Cook  v. 
Railway  Co.,  97  Wis.  624,  74  N.  W.  GUI. 


§§    3-4)  PROXIMATE    CAUSE.  15 

arrester,  and  that  the  conditions  prevailing  were  a  high  wind,  a 
drouth,  and  unlimited  prairies,  continuously  covered  with  a  heavy 
growth  of  dead,  dry  grass.  A  falling  spark  sets  fire  to  a  tie,  is  com- 
municated to  weeds  growing  on  the  roadbed,  spreads  to  the  prairie 
grass,  which  in  turn  sets  fire  to  A.'s  house,  situated  100  feet  from  the 
track.  Unquestionably  defendant  is  liable  to  A.11  No  new  element 
is  introduced  by  the  supposition  that  A.'s  house  is  removed  1  mile  or 
50  miles  further  out  into  the  prairie  grass.  The  determining  condi- 
tions are  unchanged  by  increasing  the  distance,  and  the  defendant 
must  still  be  held  liable.  Xor  is  the  situation  in  any  respect  altered 
by  apportioning  the  title  to  the  intervening  50  miles  among  50  or  100 
owners.12  In  discussing  the  causal  connection  in  such  cases,  Dr. 
Wharton  says:13  "Of  course,  we  will  all  hold  that  in  such  case  the 
liability  must  stop  somewhere.  The  only  rule  to  which  we  can  re- 
sort is  that  just  noticed, — that  causal  connection  ceases  where  there 
is  interposed  between  the  negligence  and  the  damage  an  object  which, 
if  due  care  had  been  taken,  would  have  prevented  the  damage."  It 
would  seem  to  us  that  in  this  solution  the  learned  doctor  has  not 
more  than  barely  escaped  a  petitio  principii.  The  only  limitation 
of  liability  in  cases  like  this,  where  the  causal  connection  is  not 
broken,  must  be  placed  by  the  good  sense  of  the  jury,  under  proper 
instructions  from  the  court. 

Where  defendant's  steamboat  negligently  set  fire  to  accumulated 
shavings  and  sawdust  on  the  shore,  which  in  turn  set  fire  to  a  planing 
mill,  burned  nearly  100  intervening  houses,  and  finally  destroyed 
plaintiff's  building,  at  a  distance  of  nearly  a  mile  from  the  starting 
point,  defendant's  negligence  was  held  to  be  the  proximate  cause  of 

11  Webb  v.  Railroad  Co.,  49  N.  Y.  420;   Haverly  v.  Railroad  Co.,  135  Pa.  St. 
50,  19  Atl.  1013,  26  Wkly.  Notes  Cas.  321. 

12  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Barker,  94  Ky.  71,  21  S.  W.  347.     If 
the  fire  spreads  from  the  matter  first  ignited,  the  intervention  of  considerable 
space,  or  of  various  physical  objects,  or  a  diversity  of  ownerships,  does  not 
preclude  recovery,  or  affect  the  company's  liability  for  its  first  negligent  act. 
Chicago,  St.  L.  &  P.  R.  Co.  v.  Williams,  131  Ind.  30,  30  N.  E.  696;    Union 
Pac.  Ry.  Co.  v.  McColluni,  2  Kan.  App.  319,  43  Pac.  97;    Chicago,  R.  I.  &  P. 
Ry.   Co.   v.   McBride,  54   Kan.   172,  37   Pac.  978;     Chicago   &   E.   R.   Co.   v. 
Luddington,  10  lud.  App.  636,  38  N.  E.  342;   Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 
v.  Barker,  94  Ky.  71,  21  S.  W.  347. 

is  Smith,  IS"  eg.  §§  149,  150. 


16  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Ch .    1 

the  injury  to  plaintiff.  The  case  follows  Milwaukee  &  St.  P.  Ry.  Co. 
v.  Kellogg,14  although  it  is  an  extension  of  the  principle  therein  de- 
cided. In  rendering  its  decision  the  court  says:  "In  our  opinion, 
upon  the  evidence  in  this  case,  it  was  for  the  jury,  and  not  the  court,, 
to  say  whether  the  negligence  of  the  defendant  was  the  proximate 
cause  of  the  burning  of  the  Atkinson  house.  *  *  *  The  force  of 
the  wind  at  the  time,  the  dryness  of  the  season,  and  the  combustible 
nature  of  the  buildings  intervening  between  the  place  where  the  fire 
was  kindled  and  the  place  where  the  plaintiff's  house  stood,  were  all 
facts  to  be  considered  in  determining  whether  there  was  a  reasonable 
probability  that  the  fire  would  extend  so  far;  and  the  jury  must  pass 
upon  these  facts  as  bearing  upon  the  question  of  reasonable  prob- 
ability." 15  The  court  then  cites  with  approval  the  language  of  Dixon, 
J.,  in  Kellogg  v.  Chicago  &  N.  W.  Ry.  Co.,16  as  follows:  "It  will  be 
observed  that  the  rule,  as  we  find  it  laid  down,  and  as  we  believe  it 
to  be,  is  not  that  the  injury  sustained  must  be  the  necessary  or  un- 
avoidable result  of  the  wrongful  act,  but  that  it  shall  be  the  natural 
and  probable  consequence  of  it,  or  one  likely  to  ensue  from  it." 

In  Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg  1T  the  United  States  su- 
preme court  approve  the  language  of  the  circuit  court  in  instruct- 
ing the  jury  as  follows :  "The  question'  always  is,  was  there  an  un- 
broken connection  between  the  wrongful  act  and  the  injury, — a  con- 

i*94  U.   S.  469. 

is  Atkinson  v.  Transportation  Co.,  60  Wis.  141,  18  N.  W.  764;  Green 
Ridge  R.  Co.  v.  Brinkman,  64  Md.  52,  20  Atl.  1024;  Grain  v.  Railroad 
Co.,  1  N.  D.  252,  46  N.  W.  972;  Potter  v.  Gas  Co.,  183  Pa.  St.  575,  39  Atl.  7; 
Denver,  T.  &  G.  R.  Co.  v.  Robbins,  2  Colo.  App.  313,  30  Pac.  261.  But  see 
Pennsylvania  Co.  v,  Whitlock,  99  Ind.  16;  Louisville,  X.  A.  &  C.  Ry.  Co.  v. 
Nitsche,  126  Ind.  229,  26  N.  E.  51. 

1626  Wis.  223,  at  page  281. 

IT  94  U.  S.  469,  repudiating  the  doctrine  of  Ryan  v.  Railroad  Co.,  35  N.  Y. 
210,  and  Pennsylvania  R.  Co.  v.  Kerr,  62  Pa,  St.  353.  But  in  a  subsequent 
case—  Scheffer  v.  Railroad  Co.,  105  U.  S.  249— it  was  held  that  the  suicide  of 
deceased  "was  not  a  result  naturally  and  reasonably  to  be  expected  from  the 
injury  received  on  the  train.  It  was  not  the  natural  and  probable  conse- 
quence, and  could  not  have  been  foreseen  in  the  light  of  the  circumstances 
attending  the  negligence  of  the  officers  in  charge  of  the  train."  In  this  case 
the  injuries  sustained  by  deceased,  through  defendant's  negligence,  produced 
insanity  leading  to  suicide.  The  ruling  in  Kellogg  v.  Railway  Co.  is,  bow 
ever,  fully  approved. 


§    5)  EFFICIENT,   INTERVENING,   OR    CO-OPERATING    CAUSE.  17 

tinuous  operation?  Did  the  facts  constitute  a  continuous  succes- 
sion of  events,  so  linked  together  as  to  make  a  natural  whole,  or  was 
there  some  new  and  independent  cause  intervening  between  the 
wrong  and  the  injury?  It  is  admitted  that  the  rule  is  difficult  of  ap- 
plication. But  it  is  generally  hel'd  that,  in  order  to  warrant  a  find- 
ing that  negligence,  or  an  act  not  amounting  to  wranton  wrong,  is  the 
proximate  cause  of  an  injury,  it  must  appear  that  the  injury  was  the 
natural  and  probable  consequence  of  the  negligence  or  wrongful  act, 
and  that  it  ought  to  have  been  foreseen  in  the  light  of  the  attending 
circumstances.  *  *  *  We  do  not  say  that  even  the  natural  and 
probable  consequences  of  a  wrongful  act  or  omission  are  in  all  cases 
to  be  chargeable  to  the  misfeasance  or  nonfeasance.  They  are  not 
when  there  is  a  sufficient  and  independent  cause  operating  between 
the  wrong  and  the  injury.  *  *  *  In  the  nature  of  things,  there  is 
in  every  transaction  a  succession  of  events,  more  or  less  dependent 
upon  those  preceding,  and  it  is  the  province  of  a  jury  to  look  at  this 
succession  of  events  or  facts,  and  ascertain  whether  they  are  natu- 
rally and  probably  connected  with  each  other  by  a  continuous  se- 
quence, or  are  dissevered  by  new7  and  independent  agencies,  and  this 
must  be  determined  in  view  of  the  circumstances  existing  at  the 
time." 

EFFICIENT,  INTERVENING,  OR  CO-OPERATING  CAUSE- 
DEFINITION. 

5.  Where  an  independent,  efficient,  "wrongful  cause  inter- 
venes between  the  original  wrongful  act  and  the 
injury  ultimately  suffered,  the  former,  and  not  the 
latter,  is  deemed  the  proximate  cause  of  the  injury. 

Intervening  Cause. 

An  efficient,  intervening  cause  is  a  new  proximate  cause,  which 
breaks  the  connection  with  the  original  cause,  and  becomes  itself 
solely  responsible  for  the  result  in  question.  It  must  be  an  inde- 
pendent force,  entirely  superseding  the  original  action,  and  rendering 
its  effect  in  the  chain  of  causation  remote.1 

§  5.     i  Louisville  &  X.  R.  Co.  v.  Kelsey,  89  Ala.  287,  7  South.  648;    Pennsyl- 
vania Co.  v.  \Vhitlock,  99  Ind.  16;    Read  v.  Nichols,  118  N.  Y.  224,  23  N.  E. 
BAR.NEG.— 2 


18  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Cll.    1 

It  is  immaterial  how  many  new  elements  or  forces  have  been  intro- 
duced; if  the  original  cause  remains  active,  the  liability  for  its  result 
is  not  shifted.2  Thus,  where  a  horse  is  left  unhitched  in  the  street, 

468;  Fairbanks  v.  Kerr,  70  Pa.  St.  86;  Scheffer  v.  Railroad  Co..  105  U.  S. 
249;  Agnew  v.  Corunna,  55  Mich.  428,  21  N.  W.  873;  Smith  v.  Sherwood  Tp., 
62  Mich.  159,  28  N.  W.  806;  Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  94  U.  S. 
469;  Wellman  v.  Borough  of  Susquehanna  Depot,  167  Pa.  St.  239,  31  Atl.  566: 
St.  Joseph  &  G.  I.  R.  Co.  v.  Hedge,  44  Neb.  448,  62  N.  W.  891;  Texas  &  P. 
Ry.  Co.  v.  Woods,  8  Tex.  Civ.  App.  462,  28  S.  W.  416;  Pollard  v.  Railroad 
Co.,  87  Me.  51,  32  Atl.  735;  .City  of  Peoria  v.  Adams,  72  111,  App.  662;  Willis 
v.  Armstrong  Co.,  183  Pa.  St.  184,  38  Atl.  621;  Childrey  v.  City  of  Huntington, 
34  W.  Va.  457,  12  S.  E.  536;  Schwartz  v.  Shull  (W.  Va.)  31  S.  E.  914;  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Maddry,  57  Ark.  306,  21  S.  W.  472;  Read  v. 
Nichols,  118  N.  Y.  224,  23  N.  E.  468.  In  Beall  v.  Athens  Tp.,  81  Mich.  536,  45 
N.  W.  1014,  a  horse  driven  by  plaintiff  shied  at  a  log  of  wood,  and,  being  struck 
with  the  whip,  tipped  the  buggy  over,  causing  the  injuries  complained  of.  The 
court  says:  "The  important  question  in  the  case  is  whether  the  narrowness  of 
the  highway  and  the  neglect  to  place  railings  or  barriers  along  it  primarily 
caused  the  accident.  The  township  is  only  liable  where  the  neglect  complained 
of  was  the  proximate  cause  of  the  injury.  If  such  neglect  was  the  secondary 
or  remote  cause,  the  township  is  not  liable.  The  testimony  shows  conclu- 
sively, and  without  contradiction,  that  the  primary  cause  of  the  accident 
arose  from  the  horse  taking  fright  at  a  log  at  the  side  of  the  road,  and  the 
act  of  the  driver  in  striking  the  horse  a  blow  with  his  whip."  The  trial 
court  instructed  the  jury:  "So  it  makes  no  difference  what  the  horse  got  fright- 
ened at,  if  the  negligence  of  the  township  is  the  cause  of  the  accident  not  be- 
ing prevented."  This  was  held  error,  for  the  reason  that  it  loses  sight  of 
the  distinction  between  proximate  and  remote  cause,  the  appellate  court  say- 
ing: "An  injury  caused  by  negligence  and  an  accident  not  being  prevented  by 
negligence  are  very  distinct  in  operation  and  effect." 

2  Scott  v.  Shepherd,  2  W.  Bl.  892,  3  Wils.  403  (squib  case);  City  of  Atchisou 
v.  King,  9  Kan.  550;  Murdock  v.  Inhabitants  of  Warwick,  4  Gray  (Mass.) 
178;  Lane  v.  Atlantic  Works,  111  Mass.  136;  Lake  v.  Milliken,  62  Me.  240; 
Marble  v.  City  of  Worcester,  4  Gray  (Mass.)  395;  McMahon  v.  Davidson,  12 
Minn.  357  (Gil.  232);  Nagel  v.  Railway  Co.,  75  Mo.  653;  Benjamin  v.  Railway 
Co.,  133  Mo.  274,  34  S.  W.  590;  Willis  v.  Publishing  Co.  (R.  I.)  38  Atl.  947: 
Jensen  v.  The  Joseph  B.  Thomas,  81  Fed.  578;  Gould  v.  Schermer,  101  Iowa, 
582,  70  N.  W.  697;  Union  Pac.  Ry.  Co.  v.  Callaghan.  6  C.  C.  A.  205,  56  Fed. 
988;  Mexican  Nat.  Ry.  Co.  v.  Mussette,  86  Tex.  708,  26  S.  W.  1075;  Stanton 
v.  Railroad  Co.,  91  Ala.  382,  8  South.  798;  Murdock  v.  Walker,  43  111.  App. 
590;  Gibney  v.  State,  137  N.  Y.  1,  33  N.  E.  142;  Howe  v.  Ohmart.  7  Ind.  App. 
32,  33  N.  E.  466;  East  Tennessee,  V.  &  G.  Ry.  Co.  v.  Hesters,  90  Ga.  11, 
15  S.  E.  828;  Same  v.  Hall,  90  Ga.  17,  16  S.  E.  91;  Johnson  v.  Telephone 
Exch.  Co.,  48  Minn.  433,  51  N.  W.  225;  Chicago  &  N.  W.  Ry.  Co.  v.  Prescott, 


§   5)  EFFICIENT,   INTERVENING,  OR    CO-OPERATING    CAUSE.  19 

and  unattended,  and  is  maliciously  frightened  by  a  stranger,  and 
runs  away.  But  for  the  intervening  act  he  would  not  have  run  away, 
and  the  injury  would  not  have  occurred;  yet  it  was  the  negligence 
of  the  driver  in  the  first  instance  which  made  the  runaway  possible. 
This  negligence  has  not  been  superseded  or  obliterated,  and  the  driver 
is  responsible  for  the  injuries  resulting.3  If,  however,  the  interven- 
ing, responsible  cause  be  of  such  a  nature  that  it  would  be  unreason- 
able to  expect  a  prudent  man  to  anticipate  its  happening,  he  will  not 
be  responsible  if  damage  results  solely  from  the  intervention.4  The 
intervening  cause  may  be  culpable,  intentional,  or  merely  negligent.5 

Co-operating  Cause. 

It  is  the  universal  rule  that  where  an  intelligent,  wrongful  cause 
co-operates  or  concurs  with  the  act  complained  of  to  produce  the  in- 
jury, no  matter  what  the  degree  of  its  causation  may  be,  it  in  no  way 
relieves  the  defendant  from  legal  responsibility.6  Thus,  where  de- 

8  C.  C.  A.  109,  59  Fed.  237;  Cairncross  v.  Village  of  Pewaukee,  86  Wis.  181, 
56  N.  W.  G48;  Union  Pac.  Ry.  Co.  v.  Callaghan.  6  C.  C.  A.  205,  56  Fed.  988; 
Elder  v.  Coal  Co.,  157  Pa.  St.  490,  27  Atl.  545,  33  Wkly.  Notes  Cas.  333; 
City  of  Albany  v.  Watervliet  Turnpike  &  Railroad  Co.,  76  Hun,  136,  27 
N.  Y.  Supp.  848;  Mexican  Nat.  Ry.  Co.  v.  Mussette,  86  Tex.  708,  26  S.  W. 
1075;  Berg  v.  Railway  Co.,  70  Minn.  272,  73  N.  W.  648;  Meade  v.  Railway 
Co.,  68  Mo.  App.  92;  Gardner  v.  Friederich,  25  App.  Div.  521,  49  N.  Y.  Supp. 
1077;  Murdock  v.  Walker,  43  111.  App.  590. 

3  McCahill  v.  Kipp,  2  E.  D.  Smith  (X.  Y.)  413. 

*  Parker  v.  City  of  Coboes,  10  Hun,  531  (excavation  properly  guarded,  and 
barriers  removed  in  the  night  by  third  party);  Carter  v.  Towne,  103  Mass. 
507;  Davidson  v.  Nichols,  11  Allen  (Mass.)  514. 

s  Pennsylvania  Co.  v.  Whitlock,  99  Ind.  16;  Otten  v.  Cohen  (City  Ct.  N.  Y.) 
1  N.  Y.  Supp.  430;  Scheffer  v.  Railroad  Co.,  105  U.  S.  249;  Kitteringham  v. 
Railway  Co.,  62  Iowa,  285,  17  N.  W.  585;  McClary  v.  Railroad  Co.,  3  Neb.  44; 
Louisville  &  N.  R.  Co.  v.  Guthrie,  10  Lea  (Term.)  432;  West  Mahonoy  Tp.  v. 
Watson,  116  Pa.  St.  344,  9  Atl.  430. 

s  Martin  v.  Iron  Works,  31  Minn.  407,  18  N.  W.  109;  Atkinson  v.  Trans- 
portation Co.,  60  Wis.  141,  18  N.  W.  7G4;  Eaton  v.  Railroad  Co.,  11  Allen 
(Mass.)  500;  Delaware,  L.  &  W.  R.  Co.  v.  Salmon,  39  N.  J.  Law,  299;  Hunt 
v.  Railroad  Co.,  14  Mo.  App.  160;  Liming  v.  Railroad  Co.,  81  Iowa,  246,  47 
X.  W.  66;  Johnson  v.  Telephone  Exch.  Co.,  48  Minn.  433,  51  N.  W.  225; 
Wilder  v.  Stanley,  65  Vt  145,  26  Atl.  189;  McKenna  v.  Baessler,  86  Iowa,  197, 
53  N.  W.  103;  Board  of  Com'rs  of  Boone  Co.  v.  Mutchler.  137  Ind.  140,  36 
N.  E.  534;  Postal  Tel.  Cable  Co.  v.  Zopfi,  93  Tenn.  309,  24  S.  W.  633;  Id., 
19  C.  C.  A.  605,  73  Fed.  009;  Jung  v.  Starin,  12  Misc.  Rep.  362,  33  N.  Y.  Supp. 


20  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Ch.    1 

fendant  negligently  piled  a  quantity  of  smokestacks  and  other  ma- 
terial near  the  track  of  a  railroad  company,  and,  a  train  coming 
along,  one  of  the  cars  caught  one  of  the  stacks,  pushed  it  against  a 
tower,  in  which  plaintiff  was  stationed  in  his  employment  of  signaling 
trains,  and  he  was  injured,  the  defendant  was  held  liable,  although 
the  railroad  company  may  also  have  been  negligent  in  running  its 
trains;  the  danger  of  contact  with  the  pile  of  smokestacks  being  evi- 
dent.7 The  court,  in  its  opinion,  says:  "If  piling  the  material  near 
the  track  was  a  negligent  act,  it  was  negligence  not  only  as  to  the 
railroad  company,  whose  property  and  trains  might  be  endangered 
thereby,  but  also  as  to  all  persons  who  might  probably  be  put  in 
danger  from  its  probable  consequences.  *  *  *  It  was  for  the  jury 
to  say  whether  an  ordinarily  prudent  person  would  have  foreseen  that 
so  piling  the  material  made  liable  to  happen  the  very  things  that  did 
happen,  to  wit,  that  a  passing  train  should  catch  or  push  or  carry  tho 
material  against  the  tower,  so  as  to  endanger  any  one  stationed  in 
it."  8  In  a  recent  Wisconsin  case,9  however,  where  two  fires  united, 
either  one  of  which  would  have  destroyed  plaintiff's  property,  a  novel 
doctrine  is  laid  down:  "When  a  cause  set  in  motion  by  negligence 
reaches  to  the  result  complained  of  in  a  line  of  responsible  causation, 
and  another  cause,  having  no  responsible  origin,  reaches  it  at  the 
same  time,  so  that  what  then  takes  place  would  happen  as  the  effect 
of  either  cause,  entirely  regardless  of  the  other,  then  the  consequence 
'  cannot  be  said  with  any  degree  of  certainty  to  relate  to  negligence  as 
its  antecedent."  But  the  court  concludes  that,  if  each  fire  had  been 
caused  by  a  responsible  person,  the  liability  would  have  been  joint 
and  several,  "because,  whether  the  occurrence  be  intentional,  actual, 
or  constructive,  each  wrongdoer  in  effect  adopts  the  conduct  of  his  co- 
actor,  and  for  the  further  reason  that  it  is  impossible  to  apportion  the 

650;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Sutton,  11  C.  C.  A.  251,  63  Fed.  394; 
South  Bend  Mfg.  Co.  v.  Liphart,  12  Ind.  App.  185,  39  N.  E.  90S;  Waller  v. 
Railway  Co.,  59  Mo.  App.  410,  1  Mo.  App.  Rep'r,  56;  McClellan  v.  Railway 
Co.,  58  Minn.  104,  59  N.  W.  978;  Gould  v.  Schermer,  101  Iowa,  582,  70  X.  W. 
697;  Connelly  v.  Rist,  20  Misc.  Rep.  31,  45  N.  Y.  Supp.  321. 

T  Martin  v.  Iron  Works,  31  Minn.  407,  18  N.  W.  109. 

s  Martin  v.  Iron  Works,  31  Minn.  407,  18  N.  W.  109. 

»  Cook  v.  Railway  Co.,  97  Wis.  624,  74  N.  W.  561;  Marvin  v.  Railway  Co., 
79  Wis.  140,  47  N.  W.  1123;  Pierce  v.  Michel,  1  Mo.  App.  Rep'r,  74;  fcituue  \\ 
Railroad  Co.,  171  Mass.  536,  51  N.  E.  1. 


§    5)  EFFICIENT,   INTERVENING,  OR    CO-OPERATING   CAUSE.  21 

damage,  or  to  say  that  either  perpetrated  any  distinct  injury  that  can 
be  separated  from  the  whole." 
Distinction  between  Cause  and  Condition. 

Cause  implies  a  responsible  human  agent,  capable  of  making  a  de- 
liberate choice.  Take  away  this  power  of  volition  to  influence  his 
own  conduct,  and  he  becomes  a  mere  automaton,  another  form  of 
matter,  a  natural  force  or  a  condition.10  It  follows  that,  if  choice 
and  volition  cannot  be  exercised  by  such  an  agent,  neither  blame  nor 
civil  liability  should  attach  to  his  acts.  Such  irresponsible  agents 
are:  Insane  persons,  infants,11  or  those  under  duress.12  They  may 
be  regarded  as  conditions  only,  or  as  states  of  nature;  and  a  mere 
condition  cannot  divert  or  relieve  a  rational  agent  from  responsi- 
bility.13 
"Inevitable  Accident."— "Act  of  God." 

"Inevitable  accident"  and  "act  of  God"  introduce  no  new  elements 
into  the  consideration  of  this  branch  of  the  subject.  They  are  merely 
convenient  "catch-words"  for  designating  a  class  of  cases  in  which  the 
conditions  indicated  by  these  phrases  are  factors,  more  or  less  potent, 
in  determining  liability.  They  are  generally  used  of  extraordinary 
exhibitions  of  natural  forces, — extraordinary  either  in  point  of  the 
time  of  their  occurrence  or  their  severity;  as  of  snow,  rain,  wind, 
thunder  and  lightning.  It  is  sometimes  said  that  the  term  "act  of 
God,"  in  legal  phraseology,  emphasizes  the  occurrence  as  opposed  to 
human  will;  but  we  think  this  idea  is  misleading,  and  tends  to  con- 
vey the  impression  that  when,  in  this  class  of  cases,  a  man  is  released 
from  responsibility,  it  is  because  his  will  and  efforts  must  necessarily 
be  unavailing  when  opposed  to  the  Deity.  All  natural  phenomena 
but  emphasize  the  laws  which  they  exemplify,  and  the  observation 
of  these  laws  in  daily  life  is  essential  to  the  discharge  of  the  most  or- 

10  Whart.  Neg.  §  87. 

11  Coombs  v.  Cordage  Co.,  102  Mass.  572;   Chicago  &  A.  R.  Co.  v.  Gregory, 
58  111.  220. 

12  Johnson  v.  Railroad  Co.,  70  Pa.  St.  357;    Scott  v.  Hunter,  46  Pa.  St.  192. 
is  Salisbury  v.  Herchenroder,  106  Mass.  458;    Woodward  v.  Aborn,  35  Me. 

271;  Jensen  v.  The  Joseph  B.  Thomas,  81  Fed.  578;  McFarlaue  v.  Town  of 
Sullivan,  99  Wis.  361,  74  X.  W.  559;  City  of  Atchison  v.  King.  9  Kan.  550 
(sidewalk  defective,  and  coated  with  ice;  the  condition  concurs  with  the  neg- 
lijroiifp  to  produce  in.iury.  but  the  persons  responsible  for  the  condition  of  the 
road  are  liable);  Dickinson  v.  Boyle,  17  Pick.  (Mass.)  78. 


22  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Ch.    1 

diuary  duties.  A  man  is  presumed  to  intend  the  natural  conse- 
quences of  his  acts,  and  "natural,"  in  this  sense,  includes  the  opera- 
tion of  cosmic  law.  But  our  knowledge  of  certain  natural  laws — as 
those  controlling  meteorological  conditions — is  at  present  limited,  and 
our  responsibility  should  cease  when  our  well-considered  acts  con- 
duce to  injury  through  a  manifestation  of  natural  law  which  is  so  un- 
usual as  to  lie  practically  outside  the  pale  of  experience.  It  is  in  this 
sense  only  that  a  so-called  "act  of  God"  is  of  importance  in  determin- 
ing the  question  of  liability. 

Where  defendant  negligently  left  a  wire  connecting  plaintiff's  build- 
ing with  another,  which  stood  on  elevated  land,  and  on  which  was  a 
pole  about  25  feet  high,  and  plaintiff's  building  was  burned  by  reason 
of  the  lightning  striking  the  pole,  and  being  thence  conducted  along 
the  wire,  the  court  said:  "The  further  argument  is  made  that  the 
stroke  of  lightning  was  the  'act  of  God,'  for  which  no  one  is  responsi- 
ble. Certainly  a  stroke  of  lightning  is  an  'act  of  God';  but  that  is 
not  the  question  here  presented,  or,  rather,  another  element — i.  e. 
the  negligence  of  man — is  added  to  the  question,  which  materially 
alters  its  scope.  If  I,  owning  a  high  mast  or  building,  which  I  know 
is  so  situated  as  to  be  likely  to  be  struck  by  lightning,  construct  an 
attractive  path  for  the  lightning  to  my  neighbor's  roof,  so  that  his 
house  is  destroyed  by  a  bolt  which  strikes  my  mast  or  building,  shall  I 
escape  liability  for  my  negligent  or  wrongful  act  by  pleading  that  the 
lightning  was  the  act  of  God?  Certainly  not.  I  invited  the  stroke 
of  one  of  the  most  destructive  powers  of  nature,  and  negligently 
turned  its  course  to  my  neighbor's  property.  *  *  *  The  lightning 
stroke  is  in  no  greater  degree  the  act  of  God  than  the  usual  freshets 
occurring  in  a  river."14  It  follows  that  a  natural  occurrence,  extraor- 
dinary either  in  point  of  season  or  severity,  is  available  for  purposes 
of  defense  in  an  action  for  negligence  only  in  so  far  as  its  unusual 
character  may  serve  to  negative  any  presumption  of  negligence  in  the 
conduct  of  the  defendant. 

For  purposes  of  convenience  the  following  propositions  may  be 
formulated: 

When  an  act,  either  negligent  or  nonnegligent,  is  followed  by,  but 
not  connected  with,  an  extraordinary  natural  occurrence  or  accident, 

i*  Jacksou  v.  Telephone  Co.,  88  Wis.  243,  60  N.  W.  430. 


§    5)  EFFICIENT,   INTERVENING,   OR    CO-OPERATING    CAUSE.  23 

which  alone  produces  injury,  the  occurrence  becomes  the  proximate 
cause,  and,  of  course,  no  liability  results  to  the  original  actor.15 

When  a  negligent  or  wrongful  act  is  followed  by  an  extraordinary 
natural  occurrence,  which  connects  the  act  with  consequent  injury, 
the  wrongdoer  is  still  liable;  and  this  is  true  even  if  the  original  negli- 
gent act,  without  the  concurrence  of  the  natural  phenomenon,  would 
not  in  itself  have  produced  harm.16 

is  Wald  v.  Railroad  Co.,  162  111.  545,  44  N.  E.  888  (Johnstown  flood);  In- 
ternational &  G.  N.  R.  Co.  v.  Hynes,  3  Tex.  Civ.  App.  20,  21  S.  W.  622;  Black 
v.  Railroad  Co.,  30  Neb.  197,  46  N.  W.  428;  Blythe  v.  Railway  Co.,  15  Colo. 
333,  25  Pac.  702;  Smith  v.  Railway  Co.,  91  Ala.  455,  8  South.  754;  Norfolk  & 
W.  R.  Co.  v.  Marshall's  Adni'r,  90  Va.  836,  20  S.  E.  823.  Horse  takes  fright, 
and  runs  away,  and  injury  is  caused  by  contact  with  defect  in  highway  or 
bridge;  town  not  liable.  Davis  v.  Inhabitants  of  Dudley,  4  Allen  (Mass.)  557, 
and  Moulton  v.  Inhabitants  of  Sandford,  51  Me.  127.  In  Baltimore  &  O.  R, 
Co.  v.  Sulphur  Springs  Independent  School  Dist,  96  Pa.  St.  65,  a  defective 
culvert,  not  sufficient  to  carry  off  water  in  a  flood.  Green,  J.:  "If  the  act  of 
God  in  this  particular  case  was  of  such  an  overwhelming  and  destructive 
character  as,  by  its  own  force,  and  independently  of  the  particular  negligence 
alleged  or  shown,  produced  the  injury,  there  would  be  no  liability,  though  there 
was  some  negligence  in  the  maintenance  of  the  particular  structure."  Nitro- 
Phosphate  &  O.  C.  Manure  Co.  v.  London  &  St.  K.  Docks  Co.,  9  Ch.  Div.  503; 
River  Wear  Com'rs  v.  Adamson,  2  App.  Gas.  743;  Blyth  v.  Waterworks  Co., 
11  Exch.  781.  Withers  v.  Railway  Co.,  3  Hurl.  &  N.  969:  Held,  that  the 
company  was  not  bound  to  have  constructed  their  embankment  so  as  to  meet 
such  extraordinary  floods.  International  &  G.  N.  R.  Co.  v.  Halloren,  53  Tex. 
46;  Salisbury  v.  Herchenroder,  106  Mass.  458.  But  it  is  not  error  to  refuse 
to  charge  that  defendant  was  not  liable  if  his  sign,  whose  fall  injured  plaintiff, 
fell  by  the  act  of  God,  the  strongest  testimony  in  support  of  that  hypothesis 
being  that  it  fell  on  a  windy  day  in  March.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Hopkins,  54  Ark.  209,  15  S.  W.  610.  Where  a  building  fell  during  a  violent 
storm  that  wrecked  other  neighboring  buildings,  and  there  was  evidence  tend- 
ing to  show  that  building  was  unsafe,  held,  that  fall  of  building  would  be  pri- 
marily attributed  to  storm,  and  burden  rested  on  plaintiff  to  show  unfitness 
of  building.  Turner  v.  Haar,  114  Mo.  335,  21  S.  W.  737. 

is  Palmer  v.  Inhabitants  of  Andover,  2  Cush.  (Mass.)  600;  Savannah,  F.  & 
W.  Ry.  Co.  v.  Commercial  Guano  Co.,  103  Ga.  590,  30  S.  E.  555;  Rich- 
mond &  D.  R.  Co.  v.  White,  88  Ga,  805,  15  S.  E.  802;  Adams  Exp.  Co.  v.  Jack- 
sou,  92  Tenn.  326,  21  S.  W.  666;  Lang  v.  Railroad  Co.,  154  Pa.  St.  342.  26 
Atl.  370;  Gleeson  v.  Railway  Co.,  140  U.  S.  435,  11  Sup.  Ct.  859;  Detzur  v. 
Brewing  Co.  (Mich.)  77  N.  W.  948;  Tyler  v.  Ricamore,  87  Va.  466,  12  S.  E.  799; 
Salisbury  v.  Herchenroder,  106  Mass.  458  (swinging  sign,  contrary  to  ordi- 
nance, blown  down  by  severe  gale);  Woodward  v.  Aborn,  35  Me.  271;  Lords 


24  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Cil.    1 

When  an  act  is  followed  by  and  connected  with  an  extraordinary 
natural  occurrence,  which  alone  produces  injury,  the  character,  unsea- 
sonableness,  and  degree  of  severity  of  the  phenomenon  may  be  con- 
sidered in  determining  whether  the  original  act  was  negligent  or 
not.17  A  person's  legal  duty  does  not  obligate  him  to  govern  his  con- 
duct with  a  view  to  guarding  against  every  possible  contingency. 
He  must  use  the  reasonable  care  of  an  ordinarily  prudent  person  in 
similar  circumstances,  the  circumstances  being  essential  to  the  deter- 
mination of  the  requisite  degree  of  care.  Thus,  although  water  con- 

. Bailiff-Jurats  of  Roniney  Marsh  v.  Trinity  House,  L.  R.  5  Exch.  204;  Davis 
v.  Garrett,  6  Bing.  716;  Dickinson  v.  Boyle,  17  Pick.  (Mass.)  78.  Where  the 
fall  of  a  railroad  bridge  is  caused  by  an  act  of  God,— as  a  cloudburst,— an  em- 
ploy6  cannot  hold  the  company  liable  unless  its  negligence,  to  an  extent 
amounting  to  want  of  ordinary  care,  contributed  to  the  disaster.  Rodgers  v. 
Railroad  Co.,  67  Gal.  607,  8  Pac.  377.  But  where  extraordinary  occurrence  con- 
curs with  negligent  delay  of  defendant,  authorities  do  not  agree  as  to  liability. 
The  following  are  against  liability:  Morrison  v.  Davis,  20  Pa.  St.  171;  Denny  v. 
Railroad  Co.,  13  Gray  (Mass.)  481;  Daniels  v.  Ballantine,  23  Ohio  St.  532;  Du- 
buque  Wood  &  Coal  Ass'n  v.  City  and  County  of  Dubuque,  30  Iowa,  176  (com- 
pare this  case  with  Scott  v.  Hunter,  46  Pa.  St.  192,  and  Dickinson  v.  Boyle,  17 
Pick.  [Mass.]  78);  McOlary  v.  Railroad  Co.,  3  Xeb.  44;  Memphis  &  C.  R.  Co.  v. 
Reeves,  10  Wall.  176;  Hoadley  v.  Transportation  Co.,  115  Mass.  304.  The 
following  hold  defendant  liable  where  negligent  delay  concurs  with  extraordi- 
nary occurrence  to  produce  injury:  Republican  Val.  R.  Co.  v.  Fink,  18  Xeb. 
89,  24  X.  W.  691  (in  this  case  an  improperly  constructed  embankment  gave 
way  in  an  unusual  flood);  Conflict  v.  Railway  Co.,  54  N.  Y.  500;  Michaels  v. 
Railroad  Co.,  30  X.  Y.  564.  Where  a  wire  was  negligently  placed,  and  at- 
tracted lightning,  setting  fire  to  a  house,  "act  of  God"  was  held  no  defense, 
Jackson  v.  Telephone  Co.,  88  Wis.  243,  60  X.  W.  430.  In  Austin  v.  Steamboat 
Co.,  43  X.  Y.  75,  the  court  says:  "A  party  cannot  avail  himself  of  the  defense 
of  'inevitable  accident,'  who,  by  his  own  negligence,  gets  into  a  position  which 
renders  the  accident  inevitable."  Titcomb  v.  Railroad  Co.,  12  Allen  (Mass.) 
254.  And  where  a  load  of  cotton  was  delayed  in  railroad  yard  half  an  hour, 
when  a  break  in  machinery  caused  fire  and  loss  of  cotton,  it  was  held  that 
the  breakage  of  machinery,  coupled  with  the  delay,  constituted  the  proximate 
cause.  Deming  v.  Storage  Co.,  90  Tenn.  306,  17  S.  W.  89. 

17  Where  an  unusual  frost  burst  water  pipes  laid  according  to  law.  Blyth 
v.  Waterworks  Co.,  11  Exch.  781.  Fall  of  a  railroad  bridge,  caused  by  a  cloud- 
burst Rodgers  v.  Railroad  Co.,  67  Cal.  607,  8  Pac.  377;  Withers  v.  Rail- 
road Co.,  3  Hurl.  &  N.  969  (in  this  case  the  court  held  "the  company  was  no? 
bound  to  have  a  line  constructed  so  as  to  meet  such  extraordinary  floods"); 
City  of  Clay  Centre  v.  Jevons,  2  Kan.  App.  568.  44  Pac.  745;  Kincaid  v.  Rail- 
way Co.,  1  Mo.  App.  Rep'r,  543,  62  Mo.  App.  365. 


§    5)  EFFICIENT,  INTERVENING,   OR    CO-OPERATING    CAUSE.  25 

fined  in  a  large  body  by  a  dam  becomes  a  very  dangerous  instru- 
mentality, requiring  the  exercise  of  a  very  high  degree  of  care,  rea 
sonable  prudence  does  not  demand  that  the  dam  shall  be  so  con- 
structed as  to  be  absolutely  safe,  and  to  withstand  the  pressure  of  an 
unprecedented  volume  of  water,  caused  by  an  extraordinary  flood.18 
But  the  unusual  character,  unseasonableness,  and  severity  of  the 
flood  are  proper  matters  for  consideration  in  determining  whether 
the  dam  was  constructed  with  reasonable  care  and  skill.19 

Concurring  Negligence. 

If  the  concurrent  negligence  of  two  or  more  persons  results  in  in- 
jury to  a  third,  he  may  maintain  an  action  for  damage  against  either 
or  all.20  A  common  illustration  of  this  principle  is  found  in  the  fre- 
quent suits  brought  against  municipal  corporations  for  damages 
caused  by  defects  in  the  highway,  which  defective  conditions  were 
brought  about  by  the  acts  of  third  persons.21 

In  all  cases  where  the  negligence  of  two  or  more  persons  concurs  to 

is  Withers  v.  Railroad  Co.,  3  Hurl.  &  IS7.  969. 
i»  Id. 

20  Eaton  v.  Railroad  Co.,  11  Allen  (Mass.)  500;    Lockhart  v.  Lichtenthaler. 
46  Pa.  St.  151;    Congreve  v.  Morgan,  18  X.  Y.  84;    Ricker  v.  Freeman,  50  X. 
H.  420;    Wheeler  v.  City  of  Worcester,  10  Allen  (Mass.)   501;    Chapman   v. 
Railroad  Co.,  19  N.  Y.  341;    Barrett  v.  Railroad  Co.,  45  X.  Y.  628;    McMahon 
v.  Davidson,  12  Minn.  357    (Gil.  232) ;    Griggs  v.  Fleckenstein,  14  Minn.  81  (Gil. 
62);    Lynch  v.  Xurdin.  1  Q.  B.  29;    Illidge  v.  Goodwin,  5  Car.  &  P.  190;    Me- 
Cahill  v.  Kipp,  2  E.  D.  Smith  (X.  Y.)  413;    South  Bend  Mfg.  Co.  v.  Liphart,  12 
Ind.  App.  185,  39  X.  E.  908;    Quill  v.  Telephone  Co.,  13  Misc.  Rep.  435,  34 
X.  Y.  Supp.  470;    Waller  v.  Railway  Co.,  59  Mo.  App.  410;    McClellan  v.  Rail- 
road Co.,  58  Minn.  104,  59  X.  W.  978;    Lake  Shore  &  M.  S.  Ry.  Co.  v.  Mc- 
Intosh,  140  Ind.  261,  38  X.  E.  476;    Connelly  v.  Rist,  20  Misc.  Rep.  31,  45  X. 
Y.  Supp.  321;    Jung  v.  Starin,  12  Misc.  Rep.  362,  33  X.  Y.  Supp.  650;    Chicago, 
R.  I.  &  P.  Ry.  Co.  v.  Sutton,  11  C.  C.  A.  251.  63  Fed.  394;    Galveston,  H.  & 
S.  A.  Ry.  Co.  v.  Croskell,  6  Tex.  Civ.  App.  160,  25  S.  W.  486;    Wolff  Mfg.  Co. 
v.  Wilson,  46  111.  App.  381;    Wilder  v.  Stanley,  65  Vt  145,  26  Atl.  189;    Kan- 
sas City,  M.  &  B.  R.  Co.  v.  Burton,  97  Ala.  240,  12  South.  88;    Gardner  v. 
Friederich.   25  App.  Div.   521,  49  X.   Y.   Supp.   1077;    Pratt  v.   Railway  Co., 
107  Iowa,  287,  77  X.  W.  1064.    And  see  ante,  "Co-operating  Cause,"  p.  19. 

21  Xorristown  v.   Moyer,   67   Pa.   St.  355;    City  of  Lowell  v.    Spaulding.   4 
Cush.  (Mass.)  277;    Mayor,  etc.,  of  Baltimore  v.  Peudleton,   15  Md.  12;    Wil- 
lard  v.   Xewbury,  22  Vt.  458;    Hammond  v.   Town   of  Mukwa,   40  Wis.   35; 
Veazie  v.  Railroad  Co.,  49  Me.  119;    Welle  Dine  v.  Inhabitants  of  Leeds,  51  Me. 
313;    Currier  v.  Inhabitants  of  Lowell,  16  Pick.  (Mass.)  170;    Preutiss  v.  Bos- 


26  DEFINITION'    AND    ESSENTIAL    ELEMENTS.  (Cll.    1 

produce  the  injury  complained  of,  the  law  disregards  the  relative 
importance  of  the  different  acts  as  affecting  the  result,22  although,  if 
the  injuries  resulting  from  the  distinct  acts  of  negligence  are  separa- 
ble, the  damage  may  be  apportioned  correspondingly.23  Thus,  where 
the  steamboat  of  defendant  negligently  set  fire  to  piles  of  shavings 
which  had  been  allowed  to  accumulate  about  the  planing  mill  of  B., 
from  which  the  fire  spread  to  the  planing  mill,  and  thence,  after  de- 
stroying many  intervening  houses,  to  the  property  of  plaintiff,  situate 
nearly  a  mile  distant  from  the  planing  mill,  it  appeared  that  the  owner 
of  the  planing  mill  had  been  negligent  in  allowing  the  shavings  and 
sawdust  to  accumulate  about  his  mill,  and  it  was  claimed  by  defend- 
ant that  this  negligence  of  the  mill  owner  was  such  an  intervening 
cause  between  the  negligence  of  defendant  and  the  final  destruction 
of  plaintiff's  house  that  its  destruction  must  be,  in  law,  attributed 
to  such  intervening  cause.  In  disposing  of  this  point  the  court  says: 
"Whether  we  consider  the  negligence  of  the  owners  of  the  planing 
mill  as  an  interposition  before  or  concurrently  with  the  negligence 
of  the  defendant  in  producing  the  damage,  it  is  no  defense  to  the  plain- 
tiff's action.  *  *  *  In  one  sense  the  negligence  of  the  owner  of 
the  planing  mill  was  concurrent  with  the  negligence  of  the  defendant. 
The  negligence  of  the  owner  of  the  mill  was  a  continuing  negligence ; 
it  was  present  and  acting  at  the  time  of  the  negligence  of  the  defend- 
ant; it  aided  in  kindling  the  fire  and  spreading  it  to  the  mill,  and  from 
that  to  the  surrounding  buildings."24 

ton,  112  Mass.  43;  Elliot  v.  Concord,  27  N.  H.  204;  Town  of  Centerville  v. 
Woods,  57  Ind.  192;  Thuringer  v.  Railroad  Co.,  82  Hun,  33,  31  N.  Y.  Supp.  419. 

2  2  Hunt  v.  Railroad  Co.,  14  Mo.  App.  160;  Eaton  v.  Railroad  Co.,  11  Allen 
(Mass.)  500;  Atkinson  v.  Transportation  Co.,  60  Wis.  141,  18  N.  W.  764;  Mar- 
tin v.  Iron  Works,  31  Minn.  407,  18  X.  W.  109;  Delaware,  L.  &  W.  R.  Co.  v. 
Salmon,  39  N.  J.  Law,  299;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Sutton,  11  C.  C.  A. 
251,  63  Fed.  394;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Croskell,  6  Tex.  Civ.  App, 
160,  25  S.  W.  486. 

23  Nitro-Phosphate  &  O.  C.  Manure  Co.  v.  London  &  St  K.  Docks  Co.,  9  Ch. 
Div.  503.  In  this  case  the  apportionment  was  made  where  the  injury  was 
caused  in  part  by  negligence  of  defendant  and  in  part  by  act  of  God. 

2*  Atkinson  v.  Transportation  Co.,  60  Wis.  141,  18  N.  W.  764.  And  see 
generally  on  same  point:  Bartlett  v.  Gaslight  Co.,  117  Mass.  533;  Ricker  v. 
Freeman,  50  X.  H.  420;  Lake  v.  Milliken,  62  Me.  240;  Small  v.  Railroad  Co., 
55  Iowa,  582,  18  N.  W.  437;  Griggs  v.  Fleckenstein,  14  Minn.  81  (Gil.  62); 
Pastene  v.  Adams,  49  Cal.  87;  Lane  v.  Atlantic  Works,  107  Mass.  104;  Pow- 


§   5)  EFFICIENT,  INTERVENING,  OR    CO-OPERATING    CAUSE.  27 

Degrees  of  Care. 

Under  the  Roman  law,  negligence  or  "culpa"  was  divided  into  three 
distinct  classes:  "Culpa  levis,"  "culpa,"  and  "culpa  lata";  and  these 
three  terms  were  respectively  co-ordinated  with  the  duty  whose 
breach  was  under  consideration.  If  the  duty  demanded  was  of  an 
imperative  nature,  its  breach  was  determined  by  an  act  or  omission 
involving  only  slight  negligence,  or  culpa  levis.  If  of  an  ordinary 
kind,  demanding  only  normal  or  average  prudence,  very  slight  negli- 
gence was  insufficient  to  establish  liability.  The  act  or  omission 
must  involve  more  than  culpa  levis;  it  must  involve  culpa;  while  a 
breach  of  duty  of  the  lightest  nature  must  be  attended  with  culpa  lata, 
or  a  flagrant  disregard  of  the  rights  of  the  aggrieved  party. 

For  the  purpose  of  further  classifying  the  kinds  of  duty  whose 
breach  and  attendant  negligence  was  under  consideration,  the  duties 
were  divided  into  three  groups:  When  the  transaction  was  for  the 
benefit  of  (1)  the  performer,  (2)  of  both  parties,  and  (3)  for  the  per- 
formee  only.  Under  the  first  division,  where  the  transaction  was 
carrried  on  for  the  benefit  of  the  performer,  the  other  party  being 
only  in  the  capacity  of  an  auxiliary,  and  not  sharing  in  the  antici- 
pated profit  or  advantage,  the  policy  of  their  law  decreed  that  the  per- 
former should  take  the  greatest  possible  care  not  to  injure  the  other 
party,  and  was  accordingly  held  accountable  for  culpa  levis.  Under 
the  second  division,  where  both  parties  were  equally  interested  in 
the  prosecution  of  the  work,  and  would  share  in  the  result,  it  was 
considered  that  the  performer  had  discharged  his  duty  if  he  used 
ordinary  care,  and  was,  therefore,  held  responsible  for  culpa  only. 
In  the  third  division,  where  the  work  was  for  the  exclusive  benefit 
of  the  third  party,  its  prosecution  promising  no  advantage  to  the 
performer,  slight  care  wras  held  to  satisfy  the  requirements  of  the 

ell  v.  Deveney,  3  Cush.  (Mass.)  300;  Weick  v.  Lander,  75  111.  93;  Delaware, 
L.  &  W.  R.  Co.  v.  Salmon,  39  N.  J.  Law,  309;  Orandall  v.  Transportation 
Co.,  16  Fed.  75;  Stetler  v.  Railway  Co.,  4*5  Wis.  497,  1  N.  W.  112;  Oil  City 
Gas  Co.  v.  Robinson,  99  Pa.  St.  1;  Lynch  v.  Xurdin,  1  Q.  B.  29;  Pierce  v. 
Michel,  1  Mo.  App.  Rep'r,  74;  Benzing  v.  Steinway,  101  N.  Y.  547,  5  N.  E. 
449;  Phillips  v.  Railroad  Co.,  127  N.  Y.  657,  27  N.  E.  978;  St.  Louis  Bridge 
Co.  v.  Miller,  138  111.  465,  28  X.  E.  1091;  Ry lands  v.  Fletcher,  L.  R.  3  H.  L.  330; 
Child  v.  Hearn,  L.  R,  9  Exch.  183;  Illidge  v.  Goodwin,  5  Car.  &  P.  190;  Davis 
v.  Garrett.  6  Bing.  716;  Greenland  v.  Chaplin,  5  Exch.  243. 


28  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Ch.   1 

relation,  and  the  beneficiary  was  required  to  show  gross  negligence, 
or  culpa  lata,  to  entitle  him  to  recover. 

The  most  noted  jurists  of  both  ancient  and  modern  times  have 
devoted  much  time  and  ability  to  theoretical  discussions  of  the 
degrees  of  care,  or  its  co-ordinate,  negligence,  recognized  by  courts 
of  law.  Of  all  recent  discussions  of  the  doctrine  of  degree  of  care 
as  associated  with  negligence  that  of  Dr.  Wharton  is  easily  the 
most  scholarly  and  exhaustive,  and  to  this  eminent  writer  is  cer- 
tainly due  the  credit  of  clearing  up  much  of  the  uncertainty,  and 
removing  many  of  the  errors,  that  have  hung  about  the  modern 
acceptation  of  the  old  Roman  doctrine.28 

It  is  not  within  the  scope  of  this  work  to  devote  time  and  space 
to  the  consideration  of  theories,  however  interesting,  except  in  so 
far  as  such  consideration  may  seem  necessary  to  a  clear  understand- 
ing of  the  principles  involved  as  they  are  found  in  the  practical 
treatment  of  cases  of  negligence  by  our  courts  to-day.  It  seems, 
however,  that  we  could  not  properly  proceed  to  the  practical  con- 
sideration of  the  subject  without  calling  attention  to  one  of  the 
conclusions  reached  by  Dr.  Wharton,  and  in  which  we  have  the 
temerity  to  differ  from  that  learned  jurist.  He  concludes,  after  an  ex- 
haustive discussion  of  the  matter,  involving  deep  research,  that  under 
the  Aquilian  law  but  two  degrees  of  care  or  negligence  were  rec- 
ognized, and  that  the  conditions  existing  to-day  are  not  so  altered 
as  to  require  the  addition  and  recognition  of  a  third  degree  by  our 
courts.  The  two  degrees  of  care  which  he  recognizes  are:  (1) 
The  degree  of  care  to  be  required  of  one  who  is  not,  and  does  not 
profess  to  be,  a  good  man  of  business,  or  an  expert  in  the  affairs 
under  consideration;  (2)  the  degree  of  care  or  prudence  to  be  ex- 
ercised by  and  required  of  the  man  who  actually  has,  or  professes 
to  have,  expert  knowledge  of  the  particular  kind  of  business  in- 
volved. For  purposes  of  distinction  he  would  term  the  degree  of 
care  for  which  the  first  class  should  be  held  responsible  "slicrht  care" ; 
that  for  which  the  second  class  should  be  held  responsible  "ordinary 
care."  By  this  system  of  grouping  he  would  not  hold  any  person 
or  class  of  persons  responsible  for  the  exercise  of  extreme,  or  even 
great,  care,  his  test  of  degree  in  the  highest  class  being  the  kind  of 
care  used  by  an  expert  in  that  particular  kind  of  business;  and 

20  Whart.  Neg.  §  27  et  seq. 


§   5)  EFFICIENT,  INTERVENING,  OR    CO-OPERATING    CAUSE.  29 

this,  in  turn,  would  be  measured  by  what  is  customary  among  his 
compeers  in  the  same  avocation  or  trade.  With  all  due  deference 
to  the  ability  of  this  writer,  it  seems  to  us  that  the  insufficiency  of 
this  limited  and  exclusive  division  must  become  apparent  in  con- 
sidering the  development  of  the  law  of  negligence  within  the  pres- 
ent century  in  one  line  of  cases, — that  of  the  liability  of  common 
carriers  for  injuries  inflicted  on  passengers. 

It  may  be  taken  as  the  settled  law  of  this  country,  at  least,  that 
a  common  carrier  of  persons  is  responsible  for  an  injury  arising 
through  any  flaw  or  defect  in  the  appliances  used,  whose  existence 
could  have  been  foreseen  or  detected  by  any  known  test.26  In 
other  words,  the  settled  law  requires  the  utmost  possible  degree 
of  care  known  to  human  skill  and  intelligence.  To  this,  in  defense 
of  Dr.  Wharton's  division,  it  may  be  replied  that  this  extreme  de- 
gree of  care  is  nothing  more  than  "ordinary"  and  "usual"  among 
experts  engaged  in  constructing  and  operating  railroads  and  steam- 
boats. But  it  is  not  necessary  to  go  back  to  any  remote  period  in 
the  history  of  this  class  of  decisions  to  ascertain  that  it  is  the 
decisions  of  the  courts  themselves  that  have  raised  the  degree  of 
skill  and  care  to  its  present  supreme  elevation,  and  that  the  court* 
in  making  these  same  decisions,  were  urged  by  consideration  for 
the  safety  of  the  public  to  go  far  beyond  what  was  then  customary 
among  experts  in  this  line  of  business.  Inventions  to  prevent  and 
tests  to  disclose  latent  defects  in  castings  were  in  existence,  and 
their  employment  was  required  by  the  courts,  long  before  they  were 
in  such  general  use  as  to  authorize  its  description  by  the  word 
"customary."  This  point  is  strongly  and  tersely  stated  by  one  of  the 
ablest  works  on  this  subject:27  "The  modern  demand  for  the  ex- 
ercise of  what  is  often  called  'the  utmost  care'  is  largely  due  to  the 
essentially  modern  regard  for  human  life  and  the  development  of 
applied  science.  It  is  only  within  a  very  recent  period  that  life 
has  been  considered  more  sacred  than  property,  and,  side  by  side 

26  Carroll  v.  Railroad  Co.,  58  X.  Y.  126;    Ingalls  v.  Bills,  9  Mete.  (Mass.>  1; 
Caldwell  v.  Steamboat  Co.,  47  N.  Y.  282;  Meier  v.  Railroad  Co.,  64  Pa.  St.  225; 
Hegenian  v.  Railroad  Corp.,  13  N.  Y.  9;    Pennsylvania  Co.  v.  Roy,  102  U.  S, 
451;    Palmer  v.  Canal  Co.,  120  N.  Y.  170,  24  X.  E.  302;    Texas  &  P.  Ry.  Co. 
v.  Hamilton,  66  Tex.  92,  17  S.  W.  406;    Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Sny- 
der,  117  Ind.  435.  20  X.  E.  284. 

27  Shear.  &.  II.  Xeg.  (4tli  Ed.)  §  46. 


30  DEFINITION    AND    ESSENTIAL    ELEMENTS.  (Ch.    1 

with  the  growth  of  the  feeling,  there  has  been  a  wonderful  exten- 
sion of  human  powers  by  means  of  new  inventions.  In  ancient 
times  it  would  have  seemed  preposterous  to  claim  a  greater  degree 
of  care  for  the  preservation  of  the  life  of  a  slave  than  for  the  statue 
of  an  emperor,  and  it  would  have  seemed  the  height  of  tyranny  to 
hold  any  man  of  business  to  a  degree  of  care  which  no  one  in  that 
business  had  ever  displayed,  and  to  require  him  to  do  that  which 
every  one  in  the  business  believed  to  be  impossible.  But  in  our  own 
time  legislatures  have  absolutely  forbidden  gas  companies  to  cast 
their  refuse  into  rivers,  although  these  companies  unanimously  de- 
clared with  entire  sincerity  that  they  could  not  conduct  their  busi- 
ness at  all  in  any  other  way.  So  legislatures  have  compelled  man- 
ufacturers to  consume  their  own  smoke,  although  none  of  them 
knew  how  to  do  it.  And  the  result  in  these  and  other  cases  has 
fully  vindicated  the  wisdom  of  the  stern  legislation.  When  the 
factories  were  compelled  to  consume  their  own  smoke,  their  own- 
ers paid  inventors  to  devise  a  method  of  doing  so.  When  gas  com- 
panies were  threatened  with  ruin  if  they  could  not  dispose  of  their 
refuse,  they  paid  the  cost  of  experiments  which  resulted  in  the  in- 
vention of  aniline  colors,  and  increased  the  wealth  of  the  gas  com- 
panies themselves,  while  putting  an  end  to  an  intolerable  nuisance, 
which  they  had  always  declared  to  be  unavoidable.  In  the  light 
of  such  experiences  the  courts  are  justified  in  holding  those  who 
take  charge  of  the  lives  of  human  beings  to  any  degree  of  care 
which  is  not  incompatible  with  the  transaction  of  business,  espe- 
cially when  its  practicability  has  been  demonstrated  by  its  adop- 
tion in  that  business  by  the  most  careful  class  of  persons."  28 

It  must  appear  on  the  most  casual  consideration  that  in  deter- 
mining the  liability  of  carriers  for  injuries  to  passengers  the  courts 
have  required  a  degree  of  care  certainly  not  usual  among  experts  in 
the  carrying  business,  and  in  many  instances  without  precedent.29 

It  appears,  then,  that  at  least  three  distinct  degrees  of  care  must 
be  recognized,  viz.: 

28  Fleet  v.  Hollenkemp,  13  B.  MOD.  (Ky.)  219.  "Extraordinary  diligence  is 
required  as  to  passengers,  and  the  company  is  responsible  for  the  utmost  care 
and  watchfulness,  and  answerable  for  the  smallest  negligence."  Sandham  v. 
Railroad  Co.,  38  Iowa,  at  page  90;  McGrew  v.  Stone,  53  Pa.  St.  436. 

28  Cf.  "Carriers  of  Passengers,"  post,  pp.  175-213. 


§    5)  EFFICIENT,   INTERVENING,  OR    CO-OPERATING    CAUSE.  31 

Same — Slight  Care. 

Such  as  is  required  in  the  transaction  of  daily  duties  by  the 
average  person,  and  when  the  obligor  has  not  assumed  unusual 
responsibilities  by  voluntary  action,30 — as  by  the  purchase  of  a  dan- 
gerous animal,  the  damming  up  of  water,  or  the  confinement  of 
steam,  or  the  use  of  fire.  Within  this  class  would  fall  the  degree 
of  care  required  of  a  person  driving  on  the  public  road  and  observ- 
ing the  law  of  the  road,  excavating  on  his  own  premises,31  owning 
a  ruinous  and  deserted  house,32 — or  of  a  bailee  when  the  bailment  is 
for  the  sole  benefit  of  the  bailor.88 

Same — Ordinary  Care. 

The  care  proportionate  to  the  responsibility  assumed, — as  carry- 
ing a  loaded  gun;34  where  a  bailment  is  for  the  mutual  advantage 
of  the  parties, — as  the  hirer  of  a  horse,  who  is  liable  for  ordinary 
care  and  skill  in  driving  him,35  or  one  hired  to  drive  a  horse.36 
The  degree  of  care  requisite  in  operating  trains  within  municipal 
limits  to  avoid  injury  to  persons  at  highway  crossings  falls  within 
this  class.  Statutory  signals  should  be  given;  gates  operated,  if 
required;  engineers  and  trainmen  at  their  posts,  closely  observant 
of  the  track  and  crossings;  the  regulation  rate  of  speed  observed; 
and  in  fact  every  precaution  taken  commensurate  with  the  lia- 
bility to  injure  members  of  the  public  incident  to  running  a  train 
of  cars  through  a  city  or  village.37  In  the  construction  of  a  dam 

so  Earing  v.  Lansingh,  7  Wend.  (N.  Y.)  185;    Daniels  v.  Clegg,  28  Mich.  32. 

si  Gillespie  v.  McGowan,  100  Pa,  St.  144;  Lorenzo  v.  Wirth,  170  Mass.  596, 
49  X.  E.  1010;  Ratte  v.  Dawson,  50  Minn.  450,  52  N.  W.  965;  Ennis  v.  My- 
ers, 29  App.  Div.  382,  51  N.  Y.  Supp.  550;  Dobbins  v.  Railway  Co.,  91  Tex.  60, 
41  S.  W.  62;  Gorr  v.  Mittlestaedt,  96  Wis.  296,  71  N.  W.  656. 

32  Lary  v.  Railroad  Co.,  78  Ind.  323. 

33  Coggs  v.  Bernard,  2  Ld.  Raym.  909;    Whitney  v.  Lee,  8  Mete.  (Mass.)  91; 
Spooner  v.  Mattoon,  40  Vt  300. 

•**  Tally  v.  Ayres.  3  Sneed  (Tenn.)  677. 

35  Mooers  v.  Larry,  15  Gray  (Mass.)  451;  Purnell  v.  Minor,  49  Neb.  555, 
68  X.  W.  942. 

se  Newton  v.  Pope,  1  Cow.  (X.  Y.)  109. 

37  Frick  v.  Railway  Co.,  75  Mo.  595;  Illinois  Cent  R.  Co.  v.  McCalip  (Miss.) 
25  South.  166;  Baker  v.  Railroad  Co.  (Mo.  Sup.)  48  S.  W.  838;  San  Antonio 
&  A.  P.  Ry.  Co.  v.  Peterson  (Tex.  Civ.  App.)  49  S.  W.  924;  Lake  Shore  & 
M.  S.  Ry.  Co.  v.  Boyts,  16  Ind.  App.  640,  45  X.  E.  812;  Stevens  v.  Railway 
Co.,  67  Mo.  App.  356;  Washington  S.  Ry.  Co.  v.  Lacey,  94  Va.  460,  2G  S.  E. 


32  DEFINITION    AND    ESSENTIAL    ELEMP:NTS.  (Oh.    1 

or  reservoir  the  work  should  be  done  in  such  a  manner  as  a  dis- 
creet and  prudent  man  understanding  the  circumstances  and  the 
liability  to  cause  damage  to  adjacent  lands  would  have  performed 
it,  and  it  is  not  necessary  that  it  should  be  built  in  the  strongest 
and  most  skillful  way.38 

Same — Great  Care. 

That  degree  of  attention  and  prudence  exercised  by  the  class  of 
persons  possessing  the  highest  qualifications  of  skill  and  diligence 
in  the  line  of  business  under  consideration.  It  is  not  the  care  be- 
stowed on  the  matter  in  hand  by  the  most  skilled  member  of  the 
craft  or  occupation,  but  by  the  class  composed  of  the  most  skilled 
members.  In  this  age  of  wonderful  scientific  progress  and  inven- 
tion it  would  be  unreasonable  that  liability  should  attach  for  fail- 
ure to  employ  some  newly-discovered  device  or  process  scarcely 
past  the  experimental  stage,  and  whose  efficacy  and  practicability 
had  been  determined  and  adopted  by  only  one  person.  How  gen 
eral  the  use  must  be  in  order  to  establish  a  class  must  be  deter- 
mined by  the  circumstances  of  each  case,  the  nature  of  the  busi- 
ness under  discussion,  and  the  number  of  persons  engaged  in  its 
prosecution.  To  illustrate:  A  practical  test  for  discovering  flaws 
in  iron  castings  would  be  of  such  general  and  wide-spread  utility, 

• 

834;  Cookson  v.  Railway  Co.,  179  Pa.  St.  184,  36  Atl.  194;  Iron  Mountain  R. 
Co.  v.  Dies,  98  Tenn.  655,  41  S.  W.  860;  Walter  v.  Railroad  Co.,  6  App.  D. 
C.  20;  Pinney  v.  Railway  Co.,  71  Mo.  App.  577;  Cleveland,  C.,  C.  &  St.  L, 
Ry.  Co.  v.  Doerr,  41  111.  App.  530;  Johnson  v.  Railway  Co.,  2  Tex.  Civ.  App. 
139,  21  S.  W.  274;  Alabama  G.  S.  R.  Co.  v.  Anderson,  109  Ala.  299,  19  South. 
516;'  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Walsh,  157  111.  672,  41  N.  E.  900;  Den 
ver  &  R.  G.  R.  Co.  v.  Ryan,  17  Colo.  98,  28  Pac.  79. 

ss  Hoffman  v.  Water  Co.,  10  Cal.  413;  Wolf  v.  Water  Co.,  Id.  541.  See 
generally,  as  defining  "ordinary  care,"  Chicago  City  Ry.  Co.  v.  Dinsmore,  162 
111.  658,  44  N.  E.  887;  Paris,  M.  &  S.  P.  Ry.  Co.  v.  Nesbitt  (Tex.  Civ.  App.)  38 
S.  W.  243;  Graham  v.  Town  of  Oxford,  105  Iowa,  705,  75  N.  W.  473;  New 
Orleans  &  X.  E.  R.  Co.  v.  McEwen  &  Murray,  49  La.  Ann.  1184,  22  South. 
675;  Brown  v.  Bank  (N.  H.)  39  Atl.  336;  Beck  v.  Hood,  185  Pa.  St.  32,  39 
Atl.  842;  Houston  &  T.  O.  R.  Co.  v.  Sgalinski  (Tex.  Civ.  App.)  46  S.  W.  113; 
Heunesey  v.  Railroad  Co.,  99  Wis.  109,  74  N.  W.  554;  Baltimore  &  O.  S.  W. 
Ry.  Co.  v.  Faith,  175  111.  58,  51  N.  E.  807;  Waco  Artesian  Water  Co.  v.  Cau- 
ble  (Tex.  Civ.  App.)  47  S.  W.  538;  Chicago,  St.  P.  &  K.  C.  R.  Co.  v.  Ryan,  62 
111.  App.  264;  Bertha  Zinc  Co.  v.  Martin's  Adm'r,  93  Va.  791,  22  S.  E.  869; 
Olwell  v.  Railway  Co.,  92  Wis.  330,  66  N.  W.  362. 


§    5)  EFFICIENT,  INTERVENING,   OR    CO-OPERATING    CAUSE.  33 

and  the  opportunity  for  its  employment  so  unlimited,  that  its  adop- 
tion by  a  comparatively  large  number  of  founders  would  be  essen- 
tial to  the  establishment  of  a  class  within  our  definition.  On  the 
other  hand,  locomotion  by  balloons  is  unusual,  and  the  adoption 
by  three,  or  even  two,  aeronauts  of  a  new  invention  for  steering 
them,  might  properly  be  held  to  be  usage  by  a  class. 

Test  of  Requisite  Care. 

It  follows,  then,  that  to  determine  the  degree  of  care  requisite  in 
each  case  the  criterion  must  be  the  kind  of  care  usually  exercised 
by  competent,  prudent  persons  in  similar  transactions,  in  suffi- 
cient numbers  to  establish  a  class. 

No  Degrees  of  Negligence. 

It  follows,  as  a  corollary  of  what  has  been  said,  regarding  the 
degrees  of  care  required  by  law,  that  theoretically  there  can  be 
no  degrees  of  negligence.  Failure  to  observe  the  kind  of  care 
requisite  in  any  set  of  circumstances  is  negligence  for  which, 
other  conditions  being  present,  recovery  may  be  had  according  to 
the  extent  of  the  injury  suffered;  conversely,  any  case  of  alleged 
negligence  is  directly  referable  for  test  to  the  kind  of  duty  violated, 
and  the  degree  of  care  lacking  in  the  violation.  As  a  matter  of  cus- 
tom,— a  habit  not  easily  thrown  off, — it  is  probable  that  the  terms 
"slight  negligence,"  "ordinary  negligence,"  and  "gross  negligence" 
will  continue  to  stand  on  the  lucus  a  non  principle,  for  something 
which  they  do  not  represent,  until  such  time  as  the  courts  shall 
break  away  from  the  meaningless  and  misleading  phraseology. 

BAR.XEG.--3 


34  CONTRIBUTORY  NEGLIGENCE.  (Ch.  2 

CHAPTER  H. 

CONTRIBUTORY  NEGLIGENCE. 

6.  Definition. 

7.  General  Rule. 

8.  Proximate  Cause. 

9.  Degree  of  Care. 

10.  Terror  Caused  by  Real  or  Fancied  Peril. 

11.  Knowledge  of  Danger. 

12.  Assumption  of  Risk. 

13.  Anticipation  of  Negligence. 

14.  Legal  Status  of  Plaintiff  as  Affecting  His  Contributory  Negligence. 

15.  Plaintiff  as  Trespasser  or  Licensee. 

16.  The  Relative  Time  of  Plaintiff's  Negligence  as  Affecting  His  Right  to 

Recover. 

17.  Plaintiff's  Negligence  after  the  Accident. 
18-19.     Contributory  Negligence  of  Third  Persons. 

20.  Master  and  Servant  or  Principal  and  Agent. 

21.  Shipper  and  Carrier  of  Goods. 
22-23.  Passenger  and  Common  Carrier. 

24.  Negligence  of  Husband  Imputed  to  Wife. 

25-27.  Imputed  Negligence. 

28.  Degree  of  Care  Required  of  a  Child. 

29.  Lunatics  and  Idiots. 

30.  Physical  Condition  an  Element  of  Contributory  Negligence. 

31.  Intoxication. 

32.  Comparative  Negligence. 

33.  Evidence— Burden  of  Proof. 

34.  Pleading  Contributory  Negligence. 

35.  Contributory  Negligence  as  Question  of  Fact. 

DEFINITION. 

6.  Contributory  negligence  is  such  negligence  on  the  part 
of  the  plaintiff  as  to  proximately  cause  the  injury 
complained  of,  superseding  the  prior  "wrongful  con- 
duct of  the  defendant,  and  rendering  him  incapable 
of  averting  its  consequences. 

The  intervening  or  concurrent  negligent  act  of  any  third  party, 
which  in  any  degree  assists  or  promotes  the  happening  of  the  injury, 


§    7)  GENERAL    RULE.  35 

is,  properly  speaking,  contributory  to  such  result;  but  the  term  "con- 
tributory negligence"  has,  by  common  consent  and  usage,  been  lim- 
ited in  its  application  to  the  negligent  acts  of  the  person  who  seeks  to 
recover  damages  for  the  injury. 

GENERAL  RULE. 

7.  Plaintiff  cannot  maintain  an  action  for  injuries  caused 
by  the  negligence  of  defendant,  if  his  own  neg- 
ligence contributed  in  any  degree  to  produce  the  re- 
sult complained  of,  unless 

(a)  The  defendant,  having  knowledge  of  plaintiff's  neg- 

ligence, fails  to  use  ordinary  care  to  avert  the  con- 
sequences, or  unless 

(b)  The  contributory  negligence  of  plaintiff  is  caused  by 

sudden  peril  and  terror  in  the  situation  wherein  he 
has  been  placed  by  defendant's  negligence. 

The  most  satisfactory  reason  for  this  doctrine  seems  to  be  that  the 
causal  connection  between  defendant's  negligent  act  and  the  injury 
is  broken  by  the  intervention  of  plaintiff's  independent  volition.1 
WiUful  Injury. 

In  considering  the  doctrine  of  contributory  negligence,  it  should  be 
borne  in  mind  that  it  has  no  application  in  cases  of  willful  injury, 
but  is  confined  strictly  to  negligence  under  the  definition.  Contrib- 
utory negligence  is  not  a  defense  in  an  action  for  a  willful  tort.2  But, 

§  7.  i  Tuff  v.  Warruan,  5  C.  B.  (X.  S.)  573;  Witherley  v.  Canal  Co.,  12  C.  B. 
(X.  S.)  2,  8;  Ellis  v.  Railroad  Co.,  2  Hurl.  &  N.  424;  Martin  v.  Railroad  Co., 
16  C.  B.  179;  Bridge  v.  Railroad  Co.,  3  Mees.  &  W.  244.  Approved  in  Davies 
v.  Mann,  10  Mees.  &  W.  546.  Cited  and  explained  in  Dowell  v.  Navigation 
Co.,  5  El.  &  Bl.  195;  Holden  v.  Coke  Co.,  3  C.  B.  1;  Baltimore  &  P.  R.  Co. 
v.  Jones,  95  U.  S.  439;  Tan  Lien  v.  Manufacturing  Co.,  14  Abb.  Prac.  (N.  S.) 
74;  Ince  v.  Ferry  Co.,  100  Mass.  149. 

2  Wallace  v.  Express  Co.,  134  Mass.  95;  Steinmetz  v.  Kelly,  72  Ind.  442; 
Birge  v.  Gardner,  19  Conn.  507;  Williams  v.  Railroad  Co.,  2  Mich.  259;  Cin- 
cinnati, H.  &  D.  R.  Co.  v.  Waterson,  4  Ohio  St  425;  Bunting  v.  Railroad  Co., 
16  Xev.  277;  Tonawanda  R.  Co.  v.  Munger,  5  Denio  (N.  Y.)  255;  Sanford  v. 
Railroad  Co.,  23  X.  Y.  343.  Where  defendant's  act  was  wanton  and  reckless, 
failure  of  plaintiff  to  use  ordinary  care  will  not  defeat  recovery.  Central 
Railroad  &  Banking  Co.  v.  Newman,  94  Ga.  560,  21  S.  E.  219;  Kansas  City, 


36  CONTRIBUTORY  NEGLIGENCE.  (Cll.  2 

if  the  action  is  founded  on  inadvertent  misfeasance  or  nonfeasance, 
contributory  negligence  will  prevent  recovery,  regardless  of  the  de- 
gree of  negligence  involved  in  defendant's  conduct.3 

PROXIMATE  CAUSE. 

8.  To  establish  the  defense  of  contributory  negligence,  the 
causal  connection  between  plaintiff's  negligence  and 
injury  must  be  shown. 

It  is  not  enough  that  plaintiff's  conduct  is  marked  by  the  absence  of 
even  the  slightest  care.  If  it  does  not  contribute  to  produce  the  in- 
jury, it  is  immaterial.1 

What  has  been  already  said  regarding  proximate  cause  is  equally 
applicable  where  the  negligence  in  question  is  contributory.2  The 
limitation  imposed  by  the  word  "contributory,"  however,  indicates 
that  the  negligence  of  plaintiff  need  not — in  fact  must  not — be  the 
sole  cause. 

Courts  have  said  that  the  negligence  of  plaintiff  must  "substantial- 
ly" contribute  to  the  injury,3  must  be  an  "efficient"  or  "essential" 

M.  &  B.  R.  Co.  v.  Lackey,  114  Ala.  152,  21  South.  444;  Lake  Shore  &  M.  S. 
Ry.  Co.  v.  Bodemer,  139  111.  596,  29  N.  E.  692;  Louisville  Safety- Vault  &  Trust 
Co.  v.  Louisville  &  N.  R.  Co.  (Ky.)  17  S.  W.  567. 

3  Catawissa  R.  Co.  v.  Armstrong,  49  Pa.  St.  186;  Grippen  v.  Railroad  Co.r 
40  N.  Y.  34;  Cunningham  v.  Lyness,  22  Wis.  236;  Mangam  y.  Railroad  Co., 
36  Barb.  230;  Carroll  v.  Railroad  Co.,  13  Minn.  30  (Gil.  18);  Griggs  v.  Fleck- 
enstein,  14  Minn.  81  (Gil.  62);  Neal  v.  Gillett,  23  Conn.  437;  Rowen  v.  Rail- 
road Co.,  59  Conn.  364,  21  Atl.  1073;  Ruter  v.  Foy,  46  Iowa,  132;  Carrington 
v.  Railroad  Co.,  88  Ala.  472,  6  South.  910;  Florida  Southern  Ry.  Co.  v.  Hirst, 
30  Fla.  1,  11  South.  506;  International  &  G.  N.  R.  Co.  v.  Kuehn,  11  Tex.  Civ. 
App.  21,  31  S.  W.  322. 

§  8.  i  Tendency  to  disease,  increasing  damages,  defendant  still  liable.  Mc- 
Namara  v.  Village  of  Clintonville,  62  Wis.  207,  22  N.  W.  472.  Ox  negligently 
killed  by  defendant,  value  of  hide  and  meat,  which  plaintiff  might  have  used, 
may  be  deducted  from  the  damages.  Memphis  &  C.  R.  Co.  v.  Hembree,  84  Ala. 
182,  4  South.  392;  Georgia  Pac.  R.  Co.  v.  Fullerton,  79  Ala.  298.  The  vital 
point  is,  did  the  negligence  of  plaintiff  contribute  to  the  happening  of  the 
injury,  not  to  its  increase?  Sills  v.  Brown,  9  Car.  &  P.  601,  606;  Stebbins  v. 
Railroad  Co.,  54  Vt.  464. 

2  See  ante,  pp.  9-17. 

s  Daley  v.  Railroad  Co.,  26  Conn.  591;  Montgomery  Gaslight  Co.  v.  Mont- 
gomery &  E.  Ry.  Co.,  86  Ala.  372,  5  South.  735;  West  v.  Martin,  31  Mo.  375. 


§   8)  PROXIMATE    CAUSE.  37 

cause;  *  that,  although  plaintiff  was  negligent,  if  ordinary  care  on 
his  part  would  have  availed  nothing  against  defendant's  wrong  con- 
duct, he  mav  still  recover.5  But  to  attempt  to  define  the  essential 
degree  of  intimacy  between  plaintiff's  negligence  and  injury  is  un- 
profitable and  dangerous.  In  Monongahela  City  v.  Fischer  6  the  court 
says:  "The  doctrine  of  this  court  has  always  been  that,  if  the  negli- 
gence of  the  party  contributed  in  any  degree  to  the  injury,  he  can- 
not recover."  And  it  is  now  well  settled  that,  if  the  negligence  of 
plaintiff  contributed  in  any  degree  to  cause  the  injury  complained  of, 
he  cannot  recover,7  unless  it  further  appears  that  the  defendant 
might,  by  the  exercise  of  reasonable  care  and  prudence,  have  avoided 

*  Sullivan's  Adm'r  v.  Bridge  Co.,  9  Bush  (Ky.)  81. 

5  Village  of  Orleans  v.  Perry,  24  Neb.  831,  40  N.  W.  417;  Eadley  v.  Rail- 
road Co.,  L.  R.  9  Exch.  71. 

e  111  Pa.  St.  9,  2  Atl.  87.  See,  also,  Oil  City  Fuel-Supply  Co.  v.  Boundy,  122 
Pa.  St.  449,  15  Atl.  865;  Mattimore  v.  City  of  Erie,  144  Pa.  St.  14,  22  Atl.  817; 
Banning  v.  Railroad  Co.,  89  Iowa,  74,  56  X.  W.  277;  Kennard  v.  Burton,  25 
Me.  39. 

7  Crandall  v.  Transportation  Co.,  11  Biss.  516,  16  Fed.  75;  Munger  v.  Rail- 
road Co.,  4  N.  Y.  349;  Willard  v.  Pinard,  44  Vt.  34;  Oil  City  Fuel-Supply 
Co.  v.  Boundy,  122  Pa.  St.  449,  15  Atl.  865;  Monongahela  City  v.  Fischer, 
111  Pa.  St.  9,  2  Atl.  87;  Murphy  v.  Deane,  101  Mass.  455;  Coombs  v.  Purring- 
ton,  42  Me.  332;  Hearne  v.  Railroad  Co.,  50  Cal.  482;  Flemming  v.  Railroad 
Co.,  49  Cal.  253;  Cremer  v.  Town  of  Portland,  36  Wis.  92;  Laicher  v.  Rail- 
road Co.,  28  La.  Ann.  320;  Broadwell  v.  Swigert,  7  B.  Mon.  (Ky.)  39;  Cata- 
wissa  R.  Co.  v.  Armstrong,  49  Pa.  St.  186;  Stiles  v.  Geesey,  71  Pa.  St.  439; 
Claus  v.  Steamship  Co.,  32  C.  C.  A.  282,  89  Fed.  646;  Maxwell  v.  Railway 
Co.,  1  Marv.  199,  40  Atl.  945;  United  States  Exp.  Co.  v.  McCluskey,  77  111. 
App.  56;  Guthrie  v.  Railway  Co.,  51  Neb.  746,  71  N.  W.  722;  Briscoe  v.  Rail- 
way Co.,  103  Ga.  224,  28  S.  E.  638;  South  Chicago  City  Ry.  Co.  v.  Adam- 
son,  69  111.  App.  110;  Atwood  v.  Railway  Co.,  91  Me.  399,  40  Atl.  67;  O'Con- 
nor v.  Ditch  Co.,  17  Nev.  245,  30  Pac.  882;  Jones  v.  Railroad  Co.,  107  Ala.  400, 
18  South.  30;  Payne  v.  Railroad  Co.,  129  Mo.  405,  31  S.  W.  885;  Lack  v. 
Seward,  4  Car.  &  P.  106;  Luxford  v.  Large,  5  Car.  &  P.  421;  Woolf  v. 
Beard,  8  Car.  &  P.  373;  Vennall  v.  Garner,  1  Cromp.  &  M.  21;  Dowell  v. 
Navigation  Co.,  5  El.  &  Bl.  195.  And  this  is  true  although  the  original  negli- 
gence of  defendant  involved  the  violation  of  an  ordinance  or  statute.  Payne 
v.  Railroad  Co.,  129  Mo.  405,  31  S.  W.  885.  But  see  Alaska  Treadwell  Gold- 
Min.  Co.  v.  Whelan,  12  C.  C.  A.  225,  64  Fed.  462,  where  it  was  held  that 
gross  negligence  of  defendant  may  excuse  slight  contributory  negligence  in 
the  plaintiff.  Inland  &  Seaboard  Coasting  Co.  v.  Tolson,  139  U.  S.  551,  11 
Sup.  Ct.  G53. 


38  CONTRIBUTORY  NEGLIGENCE.  (Ch.  2 

the  consequences  of  the  injured  "party's  negligence.8  In  the  language 
of  Lamar,  J.,  if  the  proximate  and  immediate  cause  of  the  injury  can 
be  traced  to  the  want  of  ordinary  care  and  caution  in  the  person 
injured,  an  action  for  the  injury  cannot  be  maintained  unless  it  fur- 
ther appears  that  the  defendant  might,  by  the  exercise  of  ordinary 
care  and  prudence,  have  avoided  the  consequences  of  the  injured 
party's  negligence.9 

DEGREE  OF  CARE. 

9.  The  plaintiff  is  obligated  to  that  degree  of  care  which 
an  ordinarily  prudent  person  of  similar  intelligence 
•would  exercise  in  the  circumstances. 

In  determining  whether  the  conduct  of  plaintiff  was  negligent  in 
the  circumstances,  the  test  is  similar  to  that  applied  to  the  conduct 
of  the  defendant  in  determining  his  primary  liability,  although  in  the 
case  of  the  former  the  law  does  not  exact  so  high  a  degree  of  dil- 
igence and  care.  It  is  certain  that  the  plaintiff  must  use  at  least 
ordinary  care  to  avoid  the  injurious  consequences  of  defendant's  mis- 
conduct.1 It  is  impossible  to  define  the  duty  of  plaintiff  by  any  lesser 

s  Grand  Trunk  Ry.  Co.  v.  Ives,  144  U.  S.  408,  12  Sup.  Ct.  679;  Clark  v. 
Railroad  Co.,  109  N.  C.  430,  14  S.  E.  43;  Spencer  v.  Railroad  Co.,  29  Iowa,  55; 
Newport  News  &  M.  V.  Co.  v.  Howe,  3  C.  C.  A.  121,  52  Fed.  303;  Morris  v. 
Railroad  Co.,  45  Iowa,  29;  Deeds  v.  Railroad  Co.,  69  Iowa,  164,  28  N.  W.  488; 
Czezewzka  v.  Railway  Co.,  121  Mo.  201,  25  S.  W.  911;  McKean  v.  Railroad 
Co.,  55  Iowa,  192,  7  N.  W.  505;  O'Rourke  v.  Railroad  Co.,  44  Iowa,  526;  Den- 
ver &  B.  P.  Rapid-Transit  Co.  v.  Dwyer,  20  Colo.  132,  36  Pac.  1106;  Nashua 
Iron  &  Steel  Co.  v.  Worcester  &  N.  R.  Co.,  62  N.  H.  159;  Indiana  Stone  Co, 
v.  Stewart,  7  Ind.  App.  563,  34  N.  E.  1019;  Tobin  v.  Cable  Co.  (Cal.)  34  Pac. 
124.  Also  cf.  Holmes  v.  Railway  Co.,  97  Cal.  161,  31  Pac.  834,  with  Overby 
v.  Railway  Co.,  37  W.  Va.  524,  16  S.  E.  813;  Pierce  v.  Steamship  Co.,  153 
Mass.  87,  26  N.  E.  415;  Evarts  v.  Railroad  Co.,  56  Minn.  141,  57  N.  W.  459; 
Keefe  v.  Railroad  Co.,  92  Iowa,  182,  60  N.  W.  503;  Little  v.  Railway  Co.,  88- 
Wis.  402,  60  N.  W.  705;  Texas  &  P.  Ry.  Co.  v.  Lively,  14  Tex.  Civ.  App. 
554,  38  S.  W.  370;  Baltimore  City  Pass.  Ry.  Co.  v.  Cooney,  87  Md.  261,  39 
Atl.  859;  Thompson  v.  Rapid-Transit  Co.,  16  Utah,  281,  52  Pac.  92;  Omaha 
St.  Ry.  Co.  v.  Martin,  48  Neb.  65,  66  N.  W.  1007;  Styles  v.  Railroad  Co.,  118 
N.  C.  1084,  24  S.  E.  740. 

»  Grand  Trunk  R.  Co.  v.  Ives,  144  U.  S.  408,  12  Sup.  Ct.  679. 

§  9.  i  In  Patrick  v.  Pote,  117  Mass.  297,  Devens,  J.,  says:  "The  plaintiff,  in 
order  to  show  that  he  was  in  the  exercise  of  due  care,  must  prove  that  he 


§   9)  DEGREE    OF    CARE.  39 

latitude  than  that  measured  by  this  word  "ordinary"  in  its  common 
significance.  Very  slight  care  may  not  be,  and  generally  is  not,  suffi- 
cient to  exempt  him  from  the  charge  of  contributory  negligence; 
neither  is  his  failure  to  exercise  unusual  care  a  defense  to  his  claim 
for  damages.2 

Xo  rule  sufficiently  elastic  to  meet  the  requirements  of  the  varying 
circumstances  which  influence  the  conduct  of  those  menaced  by  sud- 
den danger  can  be  formulated.  The  "prudent  man,"  so  often  set  up 
as  a  model  and  standard  of  comparison,  is  phlegmatic,  conservative, 
and  far-sighted;  but  he  acquires  these  and  other  excellent  attributes 
in  circumstances  which  admit  of  mature  deliberation.  What  his  con- 
duct would  be  if  the  opportunity  for  such  deliberation  were  lacking, 
is  purely  a  matter  of  conjecture.  All  definitions  of  ordinary  or  prop- 
er care,  as  affecting  contributory  negligence,  are  misleading  and  un- 
satisfactory. The  proper  degree  must  be  determined  in  the  light  of 
the  circumstances  as  disclosed  by  the  evidence  in  each  case;  the  fact 
whether  the  right  degree  has  been  used  being  usually  for  the  jury,  un- 
der the  general  instructions  of  the  court.3 

bad  acted  as  men  of  ordinary  prudence,  exercising  this  faculty,  and  pos- 
sessed of  sufficient  sense  and  capacity  to  act  intelligently,  would  have  acted 
under  similar  circumstances."  Monger  v.  Kailroad  Co.,  4  N.  Y.  349;  Priest  v. 
Nichols,  116  Mass.  401;  Kailroad  Co.  v.  Jones,  95  U.  S.  439;  Peverly  v.  City 
of  Boston,  136  Mass.  366;  Gannon  v.  Inhabitants  of  Bangor,  38  Me.  443; 
Brown  v.  Railway  Co.,  22  Minn.  165;  Salem-Bedford  Stone  Co.  v.  O'Brien, 
12  Ind.  App.  217,  40  X.  E.  430;  Chicago  &  E.  I.  R.  Co.  v.  Roberts,  44  111.  App. 
179;  Mattimore  v.  City  of  Erie,  144  Pa.  St.  14,  22  Atl.  817. 

2  Lyons  v.  Railroad  Co.,  57  N.  Y.  489;  Mark  v.  Bridge  Co.,  103  N.  Y.  28, 
8  N.  E.  243;  Chicago  &  N.  Ry.  Co.  v.  Donahue,  75  111.  106;  Xewbold  v.  Mead, 
57  Pa.  St.  487;  Davies  v.  Mann,  10  Mees.  &  "W.  546;  Quirk  v.  Elevator  Co.. 
126  Mo.  279.  28  S.  W.  10SO.  In  Chase  v.  Railroad  Co.,  24  Barb.  (N.  Y.)  273, 
it  was  held  that  "ordinary"  care  and  "reasonable"  care  were  not  synonymous, 
and  that  "reasonable  care"  was  required.  The  same  degree  of  diligence  is 
not  required  of  a  person  about  to  cross  a  public  street  to  avoid  contact  with 
vehicles  as  would  be  required  at  a  railroad  crossing.  Eaton  v.  Cripps,  94 
Iowa,  176,  62  N.  W.  687;  St.  Louis  S.  W.  Ry.  Co.  v.  Rice,  9  Tex.  Civ.  App. 
509,  29  S.  W.  525. 

s  McGrath  v.  Railroad  Co.,  59  N.  Y.  468.  In  Otis  v.  Town  of  Janesville, 
47  Wis.  422,  2  N.  W.  "S3,  the  court,  after  charging  that  "slight  negligence" 
would  not  prevent  recovery,  but  that  a  "want  of  ordinary  care"  would  do  so 
if  it  contributed  in  any  "material  degree"  to  produce  the  injury,  refused  to 
charge  that  a  "slight  want  of  ordinary  care,"  in  consequence  of  which  the 


40  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 


SAME— TERROR  CAUSED  BY  REAL  OR   FANCIED  PERIL. 

10.  When  a  person,  by  reason  of  terror,  caused  by  real  or 
fancied  peril  produced  by  the  negligence  of  defend- 
ant, fails  to  use  ordinary  care  to  avoid  the  danger, 
and  thereby  suffers  injury,  it  cannot  be  said  that, 
as  a  matter  of  law,  he  is  guilty  of  contributory  neg- 
ligence. 

This  proposition  illustrates  the  futility  of  attempting  to  fix  a  uni- 
versal standard  by  which  the  conduct  of  plaintiff  may  be  invariably 
measured.  Where  the  circumstances  are  extraordinary,  it  would  be 
unjust  to  measure  the  conduct  of  the  plaintiff  by  that  of  the  prudent 
man  unruffled  by  emergency.  "If  I  place  a  man  in  such  a  situation 
that  he  must  adopt  a  perilous  alternative,  I  am  responsible  for  the 
consequences."  1  And  so  if  a  person,  reasonably  apprehending  dan- 
ger, leaves  a  position  of  safety,  and  is  thereby  hurt,  he  may  still 
maintain  his  action.2  Neither  is  it  contributory  negligence  in  a  per- 

injury  occurred,  would  have  that  effect.  Held,  that  the  instruction  should 
have  been  given.  In  Randall  v.  Telegraph  Co.,  54  Wis.  140,  11  N.  W.  419, 
this  decision  is  affirmed,  "however  gross  defendant's  negligence  may  have 
been."  Chicago  &  G.  T.  Ry.  Co.  v.  Kinnare,  76  111.  App.  394;  Manning  v. 
Railway  Co.,  160  Mass.  230,  44  N.  E.  135;  Harmon  v.  Railroad  Co.,  7  Mackey, 
255;  Apsey  v.  Railroad  Co.,  83  Mich.  440,  47  N.  W.  513;  Eichel  v.  Senhenn, 
2  Ind.  App.  208,  28  N.  E.  193;  Central  R.  Co.  v.  Hubbard,  86  Ga.  623,  12 
S.  E.  1020. 

§  10.  i  Lord  Ellenborough,  in  Jones  v.  Boyce,  1  Starkie,  493.  See,  also, 
Walters  v.  Light  Co.  (Colo.  App.)  54  Pac.  960;  Hefferman  v.  Alfred  Barber's 
Son,  36  App.  Div.  163,  55  N.  Y.  Supp.  418;  Heath  v.  Railway  Co.,  90  Hun, 
560,  36  N.  Y.  Supp.  22;  Kreider  v.  Turnpike  Co.,  162  Pa.  St.  537,  29  Atl.  721; 
Dunham  Towing  &  Wrecking  Co.  v.  Dandelin,  143  111.  409,  32  N.  E.  258; 
Gibbons  v.  Railway  Co.,  155  Pa.  St.  279,  26  Atl.  417. 

2  Lincoln  Rapid-Transit  Co.  v.  Nichols,  37  Neb.  332,  55  N.  W.  872,  where 
one  is  placed  by  the  negligence  of  another  in  a  situation  of  sudden  peril,  his 
attempt  to  escape  danger,  even  by  doing  an  act  which  is  also  dangerous,  and 
from  which  injury  results,  is  not  contributory  negligence,  such  as  will  pre- 
vent him  from  recovering  for  the  injury,  if  the  attempt  be  such  as  a  person 
acting  with  ordinary  prudence  might,  under  the  circumstances,  make.  South 
Covington  &  C.  St.  Ry.  Co.  v.  Ware,  84  Ky.  267,  1  S.  W.  493;  Brown  v.  Rail- 
way Co.,  54  Wis.  342,  11  N.  W.  356;  Gurnz  v.  Railway  Co.,  52  Wis.  672,  10 
N.  W.  11;  Turner  v.  Buchanan,  82  Ind.  147;  Iron  R.  Co.  v.  Mowery^SG  Ohio 


§  11)         DEGREE  OF  CARE KNOWLEDGE  OF  DANGER.  41 

son  rightfully  on  a  railroad  track,  in  terror  at  the  sudden  appearance 
of  a  train,  to  jump  in  front  of  it.3  Cases  are  numerous  where  pas- 
sengers on  railway  trains  and  street  cars,  apprehending  collision  or 
other  disaster,  are  injured  by  jumping  off,  when  they  would  have  been 
unhurt  had  they  kept  their  seats.4  In  these  and  similar  cases  the 
question  whether  the  injured  exercised  due  caution  is  a  proper  one 
for  the  jury.5 

SAME— KNOWLEDGE  OF  DANGER. 

11.  Knowledge  by  plaintiff,  either  actual  or  implied  by  law, 
of  the  danger  to  which  defendant  has  exposed  him, 
is  a  prerequisite  to  the  defense  of  contributory  neg- 
ligence. 

Theoretically,  at  least,  the  duties  of  defendant  and  plaintiff  are 
reciprocal,  and  a  breach  by  the  former  does  not  release  the  latter 
from  his  obligation  to  use  ordinary  care  to  avoid  its  injurious  con- 
st. 418;  Wilson  v.  Railroad  Co.,  26  Minn.  278,  3  N.  W.  333;  Roll  v.  Railway 
Co.,  15  Hun,  496.  "If  he  makes  such  a  choice  as  a  person  of  ordinary  care, 
placed  in  the  same  situation,  might  make."  Twomley  v.  Railroad  Co.,  69  X. 
Y.  158.  Also  see  Com.  v.  Boston  &  M.  R.  R.,  129  Mass.  500;  Pennsylvania  Co. 
v.  Roney,  89  Iiid.  453;  Linnehan  v.  Sampson,  126  Mass.  506;  Pennsylvania 
R.  Co.  v.  Snyder,  55  Ohio  St.  342,  45  N.  E.  559;  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Rogers,  91  Tex.  52,  40  S.  W.  956. 

s  Indianapolis,  B.  &  W.  Ry.  Co.  v.  Oarr,  35  Ind.  510;  Coulter  v.  Express 
Co.,  56  N.  Y.  585. 

*  Buel  v.  Railroad  Co.,  31  N.  Y.  314;  Dyer  v.  Railway  Co.,  71  N.  Y.  228;  Mo- 
bile &  M.  R.  Co.  v.  Ashcraft,  48  Ala.  15;  Georgia  Railroad  &  Banking  Co. 
v.  Rhodes,  56  Ga.  645;  Cuyler  v.  Decker,  20  Hun,  173;  Chitty  v.  Railway  Co. 
(Mo.  Sup.)  49  S.  W.  868;  Washington  &  G.  R.  Co.  v.  Hickey,  5  App.  D.  C.  43(j; 
Houston,  E.  &  W.  T.  Ry.  Co.  v.  Norris  (Tex.  Civ.  App.)  41  S.  W.  708;  Wade 
v.  Power  Co.,  51  S.  C.  296,  29  S.  E.  233;  Xicholsburg  v.  Railroad  Co.,  11  Misc. 
Rep.  432,  32  N.  Y.  Supp.  130;  Killien  v.  Hyde,  63  Fed.  172. 

B  Instruction  as  to  contributory  negligence  was  modified  by  adding  that  if, 
through  defendant's  negligence,  injured  was  placed  in  a  position  of  peril  and 
confronted  with  sudden  danger,  then  the  law  did  not  require  of  him  the  snnie 
degree  of  care  and  caution  that  it  does  of  a  person  who  has  ample  oppor- 
tunities for  full  exercise  of  his  judgment.  Dunham  Towing  &  Wrecking  Co. 
v.  Dandelin,  143  111.  409,  32  X.  E.  258;  Lincoln  Rapid-Transit  Co.  v.  Nichols, 
37  Xeb.  332,  55  X.  W.  872;  Cook  v.  Railroad  Co.  (Ala.)  12  Repoiter,  35li;  Chi- 
cago, B.  &  Q.  R.  Co.  v.  Gunderson,  74  111.  App.  356. 


42  CONTRIBUTORY  NEGLIGENCE.  (Ch.  2 

sequences;1  but  it  is  evident  that  this  duty  which  rests  on  plaintiff 
cannot  arise  until  he  has  knowledge  of  the  danger  to  which  he  has 
been  exposed.2 

The  question  of  knowledge  is  generally  one  of  mixed  law  and  fact,, 
to  be  determined  by  the  jury  under  proper  instructions  from  the 
court;3  but  the  danger  may  be  so  patent,  or  the  circumstances  of 
such  a  nature,  as  to  admit  of  but  one  finding,  in  which  case  it  is  im- 
proper to  submit  the  question  to  the  jury.4 

§  11.     i  Tucker  v.  Duncan,  9  Fed.  867. 

*  Wall  v.  Town  of  Highland,  72  Wis.  435,  39  N.  W.  560;  Moomey  v.  Peak,. 
57  Mich.  259,  23  N.  W.  804;  Jeffrey  v.  Railroad  Co.,  56  Io\va,  546,  9  N.  W. 
884;  Langan  v.  Railway  Co.,  72  Mo.  392;  Dush  v.  Fitzhugh,  2  Lea,  307;  Fow- 
ler v.  Railroad  Co.,  18  W.  Va.  579;  Gray  v.  Scott,  66  Pa,  St.  345;  Thirteenth 
&  F.  St  Pass.  Ry.  Co.  v.  Boudrou,  92  Pa.  St.  475;  Pennsylvania  Tel.  Co.  v. 
Varnau  (Pa.)  15  Atl.  624;  Citizens'  St.  R.  Co.  v.  Sutton,  148  Ind.  169,  46  N.  E, 
462;  Hallyburton  v.  Association,  119  N.  C.  526,  26  S.  E.  114;  Ma  con  &  I.  S. 
St.  Ry.  Co.  v.  Holmes,  103  Ga.  655,  30  S.  E.  563;  City  of  Peoria  v.  Adams,  72 
111.  App.  662;  Cochran  v.  Railroad  Co.,  184  Pa.  St.  565,  39  Atl.  296;  Stone  v. 
Hunt,  114  Mo.  66,  21  S.  W.  454;  Brannock  v.  Elmore,  114  Mo.  53,  21  S.  W. 
451;  Thayer  v.  Railroad  Co.,  93  Mich.  150,  53  N.  W.  216;  Cannon  v.  Lewis,  18- 
Mont.  402,  45  Pac.  572;  St.  Louis  &  S.  F.  Ry.  Co.  v.  Traweek,  84  Tex.  65,  19- 
S.  W.  370;  Platt  v.  Railway  Co.,  84  Iowa,  694,  51  N.  W.  254;  Giraudi  v.  Im- 
provement Co.,  107  Cal.  120,  40  Pac.  108;  Davis  v.  Railroad  Co.,  105  Cal.  131, 
38  Pac.  647;  Rowell  v.  Railroad  Co.,  64  Conn.  376,  30  Atl.  131.  A  saloon 
keeper  is  not  presumed  to  know  that  sewer  gas,  when  mixed  in  proper  pro- 
portions with  common  air,  will  explode.  Kibele  v.  City  of  Philadelphia,  105 
Pa.  St.  41.  One  injured  by  an  electric  wire  cannot  be  presumed,  in  the  ab- 
sence of  evidence,  to  have  had  knowledge  that  moisture  destroyed  the  insula- 
tion of  such  a  wire.  Giraudi  v.  Improvement  Co.,  107  Cal.  120,  40  Pac.  108. 

s  Hathaway  v.  Railroad  Co.,  29  Fed.  489;  Philbrick  v.  City  of  Niles,  25- 
Fed.  265;  Hendricken  v.  Meadows,  154  Mass.  599,  28  X.  E.  1054;  Jennings  v. 
Van  Schaick,  108  N.  Y.  530,  15  X.  E.  424. 

4  Knowledge  implied  by  law  from  the  circumstances,  as  in  Schofield  v.  Rail- 
way Co.,  8  Fed.  488;  Patterson  v.  Hemenway,  148  Mass.  94,  19  N.  E.  15,  cit- 
ing Taylor  v.  Manufacturing  Co.,  140  Mass.  150,  3  N.  E.  21;  Messenger  v. 
Dennie,  141  Mass.  335,  5  N.  E.  283;  and  Taylor  v.  Manufacturing  Co.,  14$ 
Mass.  470,  10  X.  E.  308.  Knowledge  presumed  not  to  exist  in  the  circumstances. 
Kibele  v.  City  of  Philadelphia,  105  Pa,  St.  41;  Giraudi  v.  Improvement  Co._ 
107  Cal.  120,  40  Pac.  108. 


§12)  ASSUMPTION    OF   RISK.  4S 


ASSUMPTION   OF   RISK. 

12.  When  a  person  exposes  himself  or  his  property  to  a 
danger  of  -which  he  has  knowledge,  he  is  presumed 
to  assume  -whatever  risks  are  reasonably  incident 
to  his  conduct. 

As  where  plaintiff,  knowing  a  bridge  to  be  out  of  repair  and  un- 
safe, although  in  public  use,  attempted,  with  the  greatest  care  and 
caution,  to  drive  over  it,  and  was  injured,  the  court  held  that  he  had 
assumed  the  risk,  and  was  guilty  of  contributory  negligence.1 

An  apparent  exception  to  this  rule  exists  in  cases  where  a  person 
knowingly  encounters  danger  for  the  purpose  of  saving  his  own  prop- 
erty, which  has  been  placed  in  peril  by  the  defendant;  or  endangers 
his  own  life  in  attempting  to  rescue  another  from  imminent  peril.  In 
this  class  of  cases,  however,  the  courts  hold  that  it  is  the  right,  and 
even  the  duty,  of  one  to  endeavor,  in  such  circumstances,  to  protect 
his  own  property,  and  to  save  life,  if  it  may  be  attempted  without  a 
reckless  exposure  to  danger.2 

§  12.  i  Morrison  v.  Shelby  Co.,  116  Ind.  431,  19  X.  E.  316.  Plaintiff  stood 
for  an  hour  and  a  half  -within  two  feet  of  an  unguarded  trench,  dug  by  de- 
fendant, looking  at  election  returns,  when  a  sudden  surging  of  the  crowd 
pushed  him  into  the  trench,  and  he  was  injured.  Held,  that  he  had  volun- 
tarily exposed  himself  to  the  danger.  Roe  v.  Crimmins,  10  Misc.  Rep.  711, 
31  X.  Y.  Supp.  SOT;  Walker  v.  Lumber  Co.,  86  Me.  191,  29  Atl.  979;  Moore  v. 
Railway  Co.,  126  Mo.  265,  29  S.  W.  9;  Whalen  v.  Light  Co.,  151  X.  Y.  70,  45 
X.  E.  363;  Berg  v.  Railway  Co.,  70  Minn.  272,  73  X.  W.  648:  West  Chicago 
St.  R.  Co.  v.  Schenker,  78  111.  App.  592;  Bunnell  v.  Bridge  Co.,  66  Conn.  24, 
33  Atl.  533;  Larkin  v.  Railroad  Co.,  166  Mass.  110,  44  X.  E.  122;  Culbertson 
v.  Railroad  Co.,  88  Wis.  567,  60  X.  W.  998;  Downes  v.  Bridge  Co.  (Sup.)  58  X. 
Y.  Supp.  628. 

2  In  Rexter  v.  Starin,  73  X.  Y.  601,  the  plaintiff's  boat  being  fastened  to  the 
pier,  and  plaintiff  in  another  boat  alongside,  defendant's  boat  approached  in 
such  a  manner  as  to  make  a  collision  imminent.  Plaintiff  jumped  onto  his  own 
boat  to  do  what  he  could  to  avert  the  collision,  and  was  injured,  by  being 
struck  by  a  piece  of  timber  that  was  torn  off  in  the  collision.  Defendant 
claimed  that  it  was  contributory  negligence  for  him  to  put  himself  in  the  way 
of  a  danger  that  was  imminent  and  evident.  The  court  held,  however,  that 
it  was  plaintiff's  right  and  duty  to  look  to  the  safety  of  his  boat,  and  it  was 
for  the  jury  to  determine  whether  his  act  was  that  of  a  reasonable  man,  under 


44  CONTRIBUTORY  NEGLIGENCE.  (Ch.  2 

Absent-mindedness  or  failure  to  remember  is  no  excuse.  If  the 
plaintiff  at  any  time  had  knowledge  of  the  defective  or  dangerous  con- 
ditions, it  is  sufficient  to  charge  him  with  the  assumption  of  the  risk. 
This  is  frequently  illustrated  in  cases  of  injury  at  railroad  crossings, 
where  persons,  familiar  with  the  locality,  fail  to  look  out  for  or  ob- 
serve approaching  trains.3  In  view  of  what  has  already  been  said,  it 
is  hardly  necessary  to  add  that  such  knowledge  in  itself  does  not 
constitute  contributory  negligence,  for,  as  has  been  seen,  one  may 
lawfully  expose  himself  to  danger  in  certain  circumstances,  or,  ex- 
posing himself  negligently,  may  suffer  from  a  cause  which  he  could 
not  reasonably  anticipate. 

SAME— ANTICIPATION  OF  NEGLIGENCE. 

13.  A  person  is  obligated  to  anticipate  only  such  danger 
or  negligence  as  is  to  be  reasonably  apprehended  in 
the  circumstances. 

A  long  line  of  decisions  support  the  general  proposition  that,  as 
every  one  is  presumed  to  act  with  due  care  and  observance  of  the 
law,  negligence  cannot  be  imputed  to  one  who  fails  to  anticipate  that 
another  will  do  an  unlawful  act,  or  be  remiss  in  his  duty.1  But  every- 

the  circumstances.  Wasmer  v.  Railroad  Co.,  80  N.  Y.  212.  But  a  person  must 
not  be  reckless  in  his  exposure  to  danger,  even  in  an  effort  to  save  his  own 
property  negligently  imperiled  by  another.  Hay  v.  Railroad  Co.,  37  U.  C.  Q.  B. 
456.  It  is  not  contributory  negligence  per  se  for  a  stranger  to  go  on  premises 
where  a  fire  is  raging,  which  endangers  life  or  safety,  if  he  does  so  in  good 
faith,  for  the  purpose  of  saving  life  or  property.  Henry  v.  Railroad  Co.,  67 
Fed.  426. 

s  Baltimore  &  O.  R.  Co.  v.  Whitacre,  35  Ohio  St  627.  See,  also,  Bruker  v. 
Town  of  Covington,  69  Ind.  33;  Bassett  v.  Fish,  75  N.  Y.  303;  Weed  v.  Vil- 
lage of  Ballston  Spa,  76  X.  Y.  329;  Salem-Bedford  Stone  Co.  v.  O'Brien,  12 
Ind.  App.  217,  40  X.  E.  430.  Where  the  plaintiff  knew  of  the  obstructions, 
but  thought  they  had  been  removed,  Mahon  v.  Burns,  13  Misc.  Rep.  19,  34  X. 
Y.  Supp.  91. 

§  13.  i  Xolan  v.  Railroad  Co.,  53  Conn.  461,  4  Atl.  106;  Central  Trust  Co. 
v.  Wabash,  St.  L.  &  P.  Ry.  Co.,  26  Fed.  896;  Maloy  v.  Railway  Co.,  84  Mo. 
270;  Sickles  v.  Ice  Co.,  80  Hun,  213,  30  X.  Y.  Supp.  100.  A  traveler  crossing 
the  track  may  presume  that  the  train  will  not  run  at  a  speed  prohibited  by 
ordinance,  Hart  v.  Devereux,  41  Ohio  St.  565;  and  that  the  statutory  warning 
not  be  omitted,  Missouri  Pac.  Ry.  Co.  v.  Stevens,  35  Ivan.  622,  12  Pac.  25; 


§    14)  LEGAL    STATUS    OF    PLAINTIFF.  45 

day  experience  shows  that  such  a  presumption  is  incompatible  with 
ordinary  care  and  prudence,  and  it  is  well  settled  that  the  intervening 
negligence  of  a  third  person  does  not  relieve  the  first  wrongdoer  from 
liability  if  such  intervening  act  was  one  which  would  ordinarily  be  ex- 
pected to  flow  from  his  negligence.2 

Although  there  is  but  little  authority  to  support  the  position,  it 
is  difficult  to  understand  why  the  standard  of  ordinary  care,  when 
applied  to  the  conduct  of  the  plaintiff,  should  not  include  the  prob- 
abilities and  considerations  which  actually  shape  the  conduct  of  the 
typically  prudent  man.  Presumptions  in  questions  of  evidence  are 
one  thing,  and  presumptions  in  the  conduct  of  every-day  business  are 
another.  Every  man  is  presumed  innocent  until  proved  guilty;  but 
the  prudent  man  keeps  his  money  in  the  bank,  and  locks  his  doors  at 
night.8 


LEGAL    STATUS   OF   PLAINTIFF   AS   AFFECTING   HIS    CON- 
TRIBUTORY NEGLIGENCE. 

14.  The  legal  status  of  plaintiff  at  the  time  of  the  in- 
jury does  not  conclude  the  question  of  his  con- 
tributory negligence,  although  it  may  place  on  him 
the  burden  of  showing  that  his  conduct,  if  illegal, 
did  not  influence  the  result  complained  of. 

As  the  degree  of  care  required  to  relieve  a  person  of  the  charge 
of  negligence  varies  according  to  the  duty  which  he  must  discharge, 
so  does  the  measure  of  diligence  to  avoid  harm,  exacted  from  the 
plaintiff,  increase  or  diminish  in  proportion  to  the  duty  which  is  owed 
him  by  the  defendant.  It  may  be  put  in  this  way:  The  degree  of 
care  required  of  plaintiff  to  rebut  the  charge  of  contributory  negli- 
gence is  inversely  as  the  duty  owed  him  by  the  defendant.  This  prop- 
osition is,  of  course,  of  no  practical  value  further  than  to  direct  atten- 

and  need  not  anticipate  a  negligent  act,  O'Connor  v.  Railway  Co.,  94  Mo.  150, 
7  S.  W.  106.  Also  see  cases  collected,  Beach,  Contrib.  Neg.  p.  52. 

2  Henry  v.  Dennis,  93  Ind.  452  (a  case  said  to  be  wrongly  decided).  Pastene 
v.  Adams,  49  Gal.  87;  Griggs  v.  Fleckenstein,  14  Minn.  81  (Gil.  62);  Lane  v. 
Atlantic  Works,  111  Mass.  136;  Weick  v.  Lander,  75  111.  93. 

s  Texas  &  St.  L.  R.  Co.  v.  Young,  60  Tex.  201;    Beach,  Contrib.  Neg.  p.  51. 


46  CONTRIBUTORY    NEGLIGENCE.  (Ch.    2 

tion  to  the  shifting  nature  of  the  relation  which  exists  between  the 
reciprocal  duties  of  plaintiff  and  defendant  in  actionable  negligence. 

It  is  true  that  even  slight  negligence  will  defeat  plaintiff's  right  to 
recover,  but,  in  determining  if  he  has  been  guilty  of  any  negligence, 
the  degree  of  care  which  he  has  exercised  must  be  examined  in  the 
light  of  the  circumstances. 

The  relationship  of  the  parties  as  affecting  the  degree  of  requisite 
care  will  be  considered  later,  but  the  legal  status  of  the  plaintiff  at 
the  time  the  injury  occurred  is  often  significant  in  determining 
whether  he  has  used  that  ordinary  care  which  is  suited  to  the  occa- 
sion. 

Illegality  of  Plaintiffs  Conduct. 

The  fact  that  at  the  time  of  the  injury  plaintiff  was  engaged  in  an 
illegal  act  is  not  contributory  negligence  per  se.  It  is  undoubtedly 
proper  matter  for  consideration  as  tending  to  show  want  of  ordinary 
care,  but  its  effect  may  be  rebutted  by  showing  that  the  illegal  act 
was  merely  collateral,  and  did  not  influence  the  result  of  defendant's 
negligence.  Thus  when,  at  the  time  of  the  accident,  plaintiff  was 
violating  a  statute  regulating  speed,  it  was  held  that  this  fact  merely 
placed  on  him  the  burden  of  showing  that  the  violation  of  the  statute 
in  no  way  contributed  to  the  collision.1  And  in  general  it  may  be 
said  of  the  violation  of  a  statute,  whether  by  plaintiff  or  defendant, 
that  it  is  merely  evidence  of  want  of  ordinary  care.2  The  law  on  this 

§  14.  i  Minerly  v.  Ferry  Co.,  56  Hun,  113,  9  X.  Y.  Supp.  104;  Piollet  v.  Sim- 
mers, 106  Pa.  St.  95;  Philadelphia,  W.  &  B.  R.  Co.  v.  Philadelphia  &  H.  de 
•G.  Steam  Towboat  Co.,  23  How.  209;  Spofford  v.  Harlow,  3  Allen  (Mass.)  176; 
Baker  v.  Portland,  58  Me.  199.  In  the  latter  ease  the  plaintiff  was  driving  at 
a  rate  of  speed  on  the  streets  in  violation  of  a  city  ordinance,  and  the  court 
says:  "While  it  might  subject  the  offender  to  a  penalty,  it  will  not  excuse 
the  town  for  a  neglect  to  make  its  ways  safe  and  convenient  for  travelers,  if 
the  commission  of  the  plaintiff's  offense  did  not  in  any  degree  contribute  to 
produce  the  injury  of  which  he  complains."  Norris  v.  Litchfield,  35  N.  H.  271, 
277.  But  compare  Toledo,  W.  &  W.  Ry.  Co.  v.  Brooks,  81  111.  245,  and  Chi- 
cago &  A.  R.  Co.  v.  Michie,  83  111.  427.  See,  also,  Needham  v.  Railroad  Co.,  37 
Cal.  409. 

2  Clark  v.  Railroad  Co.,  64  X.  H.  323,  10  Atl.  676;  Briggs  v.  Railroad  Co.,  72 
N.  Y.  26;  Augusta  &  S.  R.  Co.  v.  McElmurry,  24  Ga.  75;  Hanlon  v.  Railroad 
Co.,  129  Mass.  310;  Philadelphia,  W.  &  E.  R.  Co.  v.  Kerr,  25  Md.  521;  Knup- 
fle  v.  Ice  Co.,  84  N.  Y.  488  (reversing  23  Hun,  159);  Vincett  v.  Cook,  4  Hun 
(X.  Y.)  318.  Welch  v.  Wesson,  6  Gray  (Mass.)  505:  One  of  two  persons  en- 


§    14)  LEGAL    STATUS    OF    PLAINTIFF.  47 

point  is  thus  stated  by  Bell,  J.,  in  a  New  Hampshire  case: 8  "As  a 
general  principle,  it  seems  to  us  wholly  immaterial  whether,  in  the 
abstract,  the  plaintiff  was  a  wrongdoer,  or  a  trespasser,  or  was  acting 
in  violation  of  the  law.  For  his  wrong  or  trespass  he  is  answerable 
in  damages,  and  he  may  be  punishable  for  his  violation  of  law;  but 
his  rights  as  to  other  persons  and  as  to  other  transactions  are  not  af- 
fected by  that  circumstance.  A  traveler  may  be  traveling  on  a  turn- 
pike without  payment  of  toll ;  he  may  be  riding  on  a  day  when  riding 
Is  forbidden,  or  with  a  speed  forbidden  by  law;  *  *  *  and  in 
none  of  these  cases  is  his  right  of  action  for  any  injury  he  may  sus- 
tain from  the  negligent  conduct  of  another  in  any  way  affected  by 

gaged  in  trotting  their  horses  against  each  other  may  maintain  an  action 
against  the  other  for  willfully  running  him  down,  although  they  were  trotting 
for  money,  contrary  to  law.  "We  presume  it  may  be  assumed  as  an  undis- 
puted principle  of  law  that  no  action  will  lie  to  recover  a  demand  or  a  sup- 
posed claim  for  damages  if,  to  establish  it,  the  plaintiff  requires  aid  from  an 
illegal  transaction,  or  is  under  the  necessity  of  showing  and  depending  in  any 
-degree  upon  an  illegal  agreement,  to  which  he  himself  had  been  a  party." 
Merrick,  J.  He  further  says,  in  effect:  The  plaintiff  presented  a  case  with 
no  taint  of  illegality,  which,  if  undisputed,  entitled  him  to  recover.  The  de- 
fendant then  invoked  the  aid  of  an  illegal  agreement  and  conduct,  in  which 
t>oth  parties  equally  participated,  and  from  such  a  source  neither  party  should 
be  permitted  to  derive  a  benefit.  In  Steele  v.  Burkhardt,  104  Mass.  50,  plain- 
tiff had  placed  his  horse  and  wagon  at  right  angles  to  the  sidewalk  while  un- 
loading goods,  contrary  to  a  city  ordinance,  and  defendant  negligently  drove 
his  horse  against  that  of  plaintiff,  when,  by  exercising  reasonable  care,  he 
might  have  passed  safely.  The  court  said  that  the  violation  of  the  ordinance 
was  admissible  to  show  negligence  in  respect  to  keeping  the  ordinance,  but 
•did  not  necessarily  show  negligence  that  contributed  to  the  injury.  So,  also, 
in  Jones  v.  Inhabitants  of  Andover,  10  Allen  (Mass.)  18,  20;  Bigelow,  C.  J., 
says:  "So,  in  case  of  collision  of  two  vehicles  on  a  highway,  evidence  that  the 
plaintiff  was  traveling  on  the  left  side  of  the  road,  in  violation  of  the  statute, 
when  he  met  the  defendant,  would  be  admissible  to  show  negligence."  But 
see,  also,  Wallace  v.  Express  Co.,  134  Mass.  96,  where  it  was  held  that  if  a 
person  sailing  for  pleasure  on  the  Lord's  Day,  in  violation  of  a  statute,  is  in- 
jured by  being  negligently  run  into  by  a  steamboat,  his  unlawful  act  neces- 
sarily contributes  to  the  injury,  but  otherwise  if  the  act  of  those  in  charge  of 
the  steamboat  was  wanton  and  malicious.  There  is  very  little  authority  to 
support  this  proposition,  and  the  fact  that  three  of  the  justices,  including 
Holmes,  now  chief  justice,  dissented,  is  significant. 
3  Xorris  v.  Litchfield,  35  N.  H.  271,  277. 


48  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 

these  circumstances.  He  is  none  the  less  entitled  to  recover,  unless 
it  appears  that  his  negligence  or  his  fault  has  directly  contributed  to 
his  damage." 

Nor,  on  the  other  hand,  is  contributory  negligence  any  the  less 
available  as  a  defense  by  reason  of  the  fact  that  the  defendant  has 
failed  to  perform  a  duty  imposed  by  statute.4  But  when  the  illegal 
act  in  any  manner  contributes  to  produce  the  injury  it  constitutes  the 
defense  of  contributory  negligence  to  the  same  extent  only  as  though 
it  were  not  tainted  with  illegality. 

Conversely,  the  fact  that  defendant's  negligence  involves  a  breach 
of  statute  or  an  ordinance  does  not  in  any  degree  relieve  plaintiff 
from  the  charge  of  contributory  negligence ;  as  where  one  carelessly 
walks  into  an  elevator  opening,  left  unguarded  contrary  to  statute.5 

SAME— PLAINTIFF  AS  TRESPASSER  OR  LICENSEE. 

15.  The  bare  fact  that  plaintiff  was  committing  a  tres- 
pass -when  injured  -will  not  prevent  his  recovery  for 
defendant's  negligence. 

As  Trespasser. 

Negligence  is  a  breach  of  duty,  and  the  duties  owed  to  an  actual 
trespasser  are  few  and  slight.  The  law  does  not  impose  upon  any 
one  the  duty  to  anticipate  a  trespass,  and  guard  against  possible  in- 
jury to  a  wrongdoer; x  but  it  will  not  excuse  a  willful  or  wanton  in- 

*  Anderson  v.  Lumber  Co.,  67  Minn.  79,  69  X.  W.  630;  Knisley  v.  Pratt, 
148  N.  Y.  372,  42  N.  E.  986;  O'Maley  v.  Gaslight  Co.,  158  Mass.  135,  32 
X.  E.  1119. 

5  McRickard  v.  Flint,  114  N.  Y.  222,  21  X.  E.  153;  and  see  cases  collected  in 
Beach,  Contrib.  Xeg.  (2d  Ed.)  p.  67.  Also  Trask  v.  Shotwell,  41  Minn.  66, 
42  X.  W.  699;  Beehler  v.  Daniels,  19  R.  I.  49,  31  Atl.  582;  South  Bend  Iron 
Works  v.  Larger,  11  Ind.  App.  367,  39  X.  E.  209. 

§  15.  i  Trask  v.  Shotwell,  41  Minn.  66,  42  X.  W.  699:  Elevator  in  ship- 
ping room.  Plaintiff's  intestate  came  for  goods,  and  was  told  to  call  at  door 
of  shipping  room,  but  to  wait  outside.  He  went  into  the  room,  and  was 
killed  by  falling  down  an  elevator  shaft,  left  unguarded,  contrary  to>  statute. 
Held  no  recovery.  In  Larmore  v.  Iron  Co.,  101  X.  Y.  391,  4  X.  E.  752,  plain- 
tiff went  onto  premises  without  invitation  to  seek  employment,  and  while 
passing  along  was  injured  by  operation  of  a  machine  not  obviously  dangerous, 
although  the  defect  might  have  been  discovered  by  the  exercise  of  reasonable 
care.  Xo  recovery.  Followed  in  Sterger  v.  Vansicklen,  132  X.  Y.  499,  30  X.  E. 


§    15)  LEGAL    STATUo    OF    Pi.AlNTIFK.  49 

jury  inflicted  on  him.  But  where  plaintiff  relies  upon  the  violation  of 
some  statute  or  ordinance  enacted  for  the  protection  of  those  right- 
fully upon  certain  premises,  he  must  show  that  at  the  time  of  the 
injury  he  belonged  to  the  class  intended  to  be  benefited  by  the  stat- 
ute or  ordinance,  and  if  it  appears  that  he  was  at  that  time  a  tres- 
passer he  cannot  complain  of  the  violation.  Thus,  where  a  statute 
required  railroad  companies  to  block  all  frogs  in  their  yards,  and 
plaintiff's  decedent,  a  trespasser  in  defendant's  yards,  was  killed  by 
reason  of  catching  his  foot  in  an  unblocked  frog,  no  other  negli- 
gence on  the  part  of  defendant  being  shown,  no  recovery  was  allowed; 
the  court  observing:  "A  violation  of  a  statutory  duty  can  be  made 
the  foundation  of  an  action  only  by  a  person  belonging  to  the  class 
intended  to  be  protected  by  such  regulation,  and  all  statutes  requiring 
the  owner  or  occupant  of  premises  to  adopt  certain  precautions  to  ren- 
der them  safe  are  designed  for  the  protection,  not  of  the  wrongdoers 
or  trespassers,  but  of  those  who  are  rightfully  upon  them.  Hence  it 
is  held  universally,  except,  perhaps,  in  Tennessee,  that  in  case  of 
noncompliance  with  such  a  statute  the  injured  person,  in  order  to 
recover,  must  have  been  rightfully  in  the  place,  and  free  from  contrib- 

987;  distinguished  in  Byrne  v.  Railroad  Co.,  104  N.  Y.  362,  10  N.  E.  539;  Mil- 
ler v.  Woodhead,  104  N.  Y.  471,  11  N.  E.  57;  cited  in  Splittdorf  v.  State,  108- 
X.  Y.  205,  15  X.  E.  322;  Cusick  v.  Adams,  115  N.  Y.  55,  21  N.  E.  673;  Larkin 
v.  O'Neill,  119  X.  Y.  221,  23  N.  E.  563.  See,  also,  Redigan  v.  Railroad  Co., 
l.">5  Mass.  44,  28  X.  E.  1133.  where  owner  of  private  way  failed  to  put  up- 
sign.  Stevens  v.  Xichols,  155  Mass.  472,  29  X.  E.  1150;  Reardon  v.  Thomp- 
son, 149  Mass.  207,  21  X.  E.  369;  Omaha  &  R.  V.  R.  Co.  v.  Martin,  14  Xeb. 
295,  15  X.  TV.  696;  Blatt  v.  McBarron,  161  Mass.  21,  36  X.  E.  468;  Mergen- 
thaler  v.  Kirby,  79  Md.  182,  28  Atl.  1065;  Fredericks  v.  Railroad  Co.,  46  La. 
Ann.  1180,  15  South.  413;  Berlin  Mills  Co.  v.  Croteau,  32  C.  C.  A.  126,  88 
Fed.  860;  Biggs  v.  Wire  Co.  (Kan.  Sup.)  56  Pac.  4;  Ritz  v.  City  of  Wheeling 
(W.  Va.)  31  S.  E.  993;  Peters  v.  Bowman,  115  Cal.  345,  47  Pac.  113,  598;  Butz 
v.  Cnvanaugh,  137  Mo.  503,  38  S.  W.  1104;  Missouri,  K.  &  T.  Ry.  Co.  of  Texas 
v.  Dobbins  (Tex.  Civ.  App.)  40  S.  W.  861;  Dublin  Cotton-Oil  Co.  v.  Jarrard 
(Tex.  Civ.  App.)  40  S.  W.  531;  Reeves  v.  French  (Ky.)  45  S.  W.  771;  Anderson 
v.  Railway  Co.,  19  Wash.  340,  53  Pac.  345;  Hector  Min.  Co.  v.  Robertson,  22 
Colo.  491,  45  Pac.  406;  Hutson  v.  King,  95  Ga.  271,  22  S.  E.  615;  Magner  v. 
Baptist  Church,  174  Pa.  St.  84,  34  Atl.  456;  LOAVC  v.  Salt  Lake  City,  13  Utah, 
91,  44  Pac.  1050;  Dicken  v.  Coal  Co.,  41  W.  Va.  511,  23  S.  E.  582;  Pelton 
v.  Schmidt,  104  Mich.  345,  62  X.  W.  552;  Barney  v.  Railroad  Co.,  126  Mo. 
372,  28  S.  W.  1069;  Walsh  v.  Railroad  Co.,  145  X.  Y.  301,  39  N.  E.  10US;. 
Elliott  v.  Carlson,  54  111.  App.  470. 
BAR.XEG.— 4 


50  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 

utory  negligence.  Such  statutes  were  never  designed  to  abrogate  the 
ordinary  rules  that,  to  recover,  the  neglected  duty  must  have  been 
due  to  the  party  injured,  and  that  he  himself  must  have  been  free 
from  contributory  negligence."  a 

A.S  Licensee. 

But  where  the  circumstances  are  such  as  to  create  or  imply  a 
license  or  invitation  to  go  upon  premises,  the  owner  is  bound  to  ex- 
ercise ordinary  care  for  his  safety.3  And  in  some  cases  it  would  seem 
to  be  sufficient  if  the  owner  exercised  but  slight  care.4  The  weight  of 
authorities  seems  to  support  the  proposition  that,  if  the  owner  is 
ignorant  of  the  danger,  or  it  is  patent,  the  licensee  or  invited  person 
cannot  recover.8 

2  Akers  v.  Railway  Co.,  58  Minn.  540,  GO  N.  W.  669. 

a  Campbell  v.  Boyd,  88  N.  C.  129;  Hooker  v.  Railway  Co.,  76  Wis.  542,  44 
N.  W.  1085;  Brezee  v.  Powers,  80  Mich.  172,  45  N.  W.  130;  Toomey  v.  San- 
born,  146  Mass.  28,  14  N.  E.  921;  Emery  v.  Exposition,  56  Minn.  460,  57  N. 
W.  1132;  Davis  v.  Ferris,  29  App.  Div.  623,  53  N.  Y.  Supp.  571;  Brehmer  v. 
Lyman  (Vt.)  42  Atl.  613;  Kinney  v.  Onsted,  113  Mich.  96,  71  N.  W.  482;  Mc- 
Govern  v.  Oil  Co.,  11  App.  Div.  588,  42  N.  Y.  Supp.  595;  Richmond  &  M.  Ry. 
Co.  v.  Moore's  Adm'r,  94  Va.  493,  27  S.  E.  70;  Barman  v.  Spencer  (Ind.  Sup.) 
49  N.  E.  9;  Anderson  &  Nelson  Distilling  Co.  v.  Hair  (Ky.)  44  S.  W.  658; 
Doherty  v.  McLean,  171  Mass.  399,  50  N.  E.  938;  Wilson  v.  Olano,  28  App.  Div 
Supp.  448,  51  N.  Y.  Supp.  109;  Smith  v.  Day,  86  Fed.  62;  Blackstone  v. 
Foundry  Co.,  170  Mass.  321,  49  N.  E.  635;  Fitzpatrick  v.  Manufacturing  Co. 
(N.  J.  Sup.)  39  Atl.  675;  Clarkin  v.  Biwabik-Bessemer  Co.,  65  Minn.  483,  67 
N.  W.  1020;  Lowe  v.  Salt  Lake  City,  13  Utah,  91,  44  Pac.  1050;  Hart  v. 
Park  Club,  54  111.  App.  480;  Peake  v.  Buell,  90  Wis.  508,  63  N.  W.  1053;  Pel- 
ton  v.  Schmidt,  104  Mich.  345,  62  N.  W.  552. 

*  Woodruff  v.  Bowen,  136  Ind.  431,  34  X.  E.  1113;  Beehler  v.  Daniels,  18 
R.  I.  563,  29  Atl.  6;  Walsh  v.  Railroad  Co.,  145  N.  Y.  301,  39  N.  E.  1068; 
Plummet  v.  Dill,  156  Mass.  426,  31  N.  E.  128;  Faris  v.  Hoberg,  134  Ind.  209. 
33  N.  E.  1028;  Gibson  v.  Leonard,  143  111.  182,  32  N.  E.  182;  Akers  v.  Rail- 
road Co.,  58  Minn.  540,  60  N.  W.  669;  Stevens  v.  Nichols,  155  Mass.  472.  29 
N.  E.  1150. 

5  Campbell  v.  Boyd,  88  N.  C.  129;  Cusick  v.  Adams,  115  N.  Y.  55,  21  N.  E. 
673;  Eisenberg  v.  Railway  Co.,  33  Mo.  App.  85.  See,  also,  Shir.  Lead.  Gas. 
<3d  Ed.)  p.  276:  "A  licensee  can  only  maintain  an  action  against  his  licensor 
when  the  danger  through  which  he  has  sustained  hurt  was  of  a  latent  charac- 
ter, which  the  licensor  knew  of  and  the  licensee  did  not."  And  it  is  fre- 
quently said  that  the  owner  of  premises  is  liable  to  a  licensee  for  something 
in  the  nature  of  a  trap  or  a  concealed  danger  only.  Southcote  v.  Stanley, 


§    16)  BKLATIVE    TIME    OF    PLAINTIFF'S    NEGLIGENCE.  51 

THE    RELATIVE    TIME    OF    PLAINTIFF'S    NEGLIGENCE    AS 
AFFECTING  HIS  RIGHT  TO  RECOVER. 

16.  Referring  to  defendant's  negligence,  the  relative  time 
of  the  negligence  of  plaintiff  as  happening  before, 
at  the  time  of,  or  subsequent  to  that  of  defendant, 
is  immaterial. 

Plaintiff  negligently  walks  on  the  railroad  tracks  of  defendant,  who 
discovers  him  in  time  to  prevent  injury  by  the  exercise  of  ordinary 
care.  Failing  in  this,  defendant  is  liable  to  plaintiff,  although  the  lat- 
ter is,  at  best,  but  a  mere  licensee,  for  injuries  thus  caused.1  A 
person  may  be  induced  by  defendant's  conduct  to  assume  the  risk,2 
or  he  may  assume  some  risks  with  the  reasonable  expectation  that 
those  having  knowledge  of  his  position  will  use  ordinary  care  to 
avoid  inflicting  injury  on  him;3  and  if,  having  this  knowledge,  they 
fail  to  use  the  proper  degree  of  care,  and  plaintiff  is  consequently 

1  Hurl.  &  N.  247;  White  v.  France,  2  C.  P.  Div.  308;  Bolch  v.  Smith,  7  Hurl. 
.&  N.  730;  Pickard  v.  Smith,  10  C.  B.  (N.  S.)  470. 

§  16.  i  Lay  v.  Railroad  Co.,  106  N.  C.  404,  11  S.  E.  412;  Houston  &  T.  C. 
Ry.  Co.  v.  Carson,  66  Tex.  345,  1  S.  W.  107;  Wooster  v.  Railway  Co.,  74  Iowa, 
593,  38  N.  W.  425;  Kansas  Pac.  Ry.  Co.  v.  Cranmer,  4  Colo.  524;  Kelly  v. 
Transit  Co.,  95  Mo.  279,  8  S.  W.  420;  Austin  v.  Steamboat  Co.,  43  N.  Y.  75; 
Baltimore  &  O.  R.  Co.  v.  Kean,  65  Md.  394,  5  Atl.  325;  Button  v.  Railroad 
•Co.,  18  N.  Y.  248;  Cleveland,  C.  C.  &  I.  R.  Co.  v.  Elliott,  28  Ohio  St.  340; 
Doggett  v.  Railroad  Co.,  78  N.  C.  305;  Needham  v.  Railroad  Co.,  37  Cal.  409; 
Chicago  &  A.  R.  Co.  v.  Anderson,  166  111.  572,  46  X.  E.  1125;  Embry  v.  Rail- 
road Co.  (Ky.)  36  S.  W.  1123;  St.  Louis  S.  W.  Ry.  Co.  v.  Bishop,  14  Tex. 
Civ.  App.  504,  37  S.  W.  764;  Lindsay  v.  Railroad  Co.,  68  Vt.  556,  35  Atl. 
513;  Blankenship  v.  Railroad  Co.,  94  Va.  449,  27  S.  E.  20;  Gunn  v.  Railroad 
Co.,  42  W.  Va.  676,  26  S.  E.  546;  Thomas  v.  Railway  Co.,  103  Iowa,  649,  72 
N.  W.  783;  Willis  v.  Railroad  Co.,  122  N.  C.  905,  29  S.  E.  941. 

2  Dewire  v.  Bailey,  131  Mass.  169;    Looney  v.  McLean,  129  Mass.  33. 

s  Gothard  v.  Railroad  Co.,  67  Ala.  114;  Zimmerman  v.  Railroad  Co.,  71 
Mo.  476;  Trow  v.  Railroad  Co.,  24  Vt.  487;  Wright  v.  Brown.  4  Ind.  95; 
Baltimore  &  O.  R.  Co.  v.  State,  33  Md.  542;  Baltimore  &  O.  R.  Co.  v.  Mul- 
ligan, 45  Md.  486;  Mississippi  Cent.  R.  Co.  v.  Mason,  51  Miss.  234;  Johnson 
v.  Railroad  Co.,  27  La.  Ann.  53;  Isbell  v.  Railroad  Co.,  27  Conn.  393;  Under- 
wood v.  Waldron,  33  Mich.  232;  O'Rourke  v.  Railroad  Co.,  44  Iowa,  526; 
Illinois  Cent.  R.  Co.  v.  Hoffman,  67  111.  287;  Lane  v.  Atlantic  Works,  107 
Mass.  104;  Tuff  v.  Warmau,  2  C.  B.  (N.  S.)  740. 


52  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 

injured,  their  breach  of  duty  becomes  the  proximate  cause  of  the  in- 
jury, and  they  are  liable.4  When  plaintiff  was  riding  in  a  phaeton,, 
and,  in  attempting  to  cross  the  tracks  of  defendant,  the  view  being 
unobstructed,  was  struck  by  a  car,  and  injured,  the  court  said:  "If 
the  motorman  so  saw  the  plaintiff  in  such  danger  and  unconscious 
of  her  peril,  and  might,  by  the  exercise  of  reasonable  care  and  pru- 
dence, have  avoided  the  consequences  of  the  plaintiff's  negligence, 
but  failed  to  do  so,  then  such  failure  Was  something  more  than  a  want 
of  ordinary  care  on  his  part,  and  amounted  to  wanton  or  reckless 
conduct."  6 

If  the  negligence  of  plaintiff  is  contemporaneous  with  that  of  de- 
fendant, and  the  mutual  negligent  acts  combine  to  produce  the  harm,, 
it  is  evident  that  there  can  be  no  recovery.6  It  was  so  held  where 
plaintiff,  in  the  employment  of  a  third  person,  was  engaged,  under 
the  direction  of  a  servant  of  defendant,  in  withdrawing  from  a  rock 
an  unexploded  charge  of  powder.  The  two  men,  working  together, 
employed  a  dangerous  method  of  performing  the  work,  and  plaintiff 
was  injured  by  an  explosion.7  If  the  acts  of  negligence  are  not  con- 

*  Gothard  v.  Railroad  Co.,  67  Ala.  114;  Shear.  &  R.  Neg.  (-ith  Ed.)  §  99; 
Little  v.  Raihvay  Co.,  88  Wis.  402,  60  N.  W.  705;  Baltimore  &  O.  11.  Co.  v. 
Hellenthal,  88  Fed.  116,  31  C.  C.  A.  414;  Higgins  v.  Railway  Co.,  1  Marv. 
352,  41  Atl.  86;  Maxwell  v.  Railway  Co.,  1  Marv.  199,  40  Atl.  945;  Krenzer 
v.  Railway  Co.,  151  Ind.  587,  52  N.  E.  220;  Texas  &  P.  Ry.  Co.  v.  Lively,  14 
Tex.  Civ.  App.  554,  38  S.  W.  370;  Baltimore  City  Pass.  Ry.  Co.  v.  Coouey,  8T 
Md.  261,  39  Atl.  859;  McKeon  v.  Railway  Co.,  20  App.  Div.  601,  47  N.  Y. 
Supp.  374;  Thompson  v.  Rapid-Transit  Co.,  16  Utah,  281,  52  Pac.  92;  Omaha 
St.  Ry.  Co.  v.  Martin,  48  Neb.  65,  66  N.  W.  1007;  Styles  v.  Railroad  Co.,  118- 
N.  C.  1084,  24  S.  E.  740;  Hall  v.  Railway  Co.,  13  Utah,  243,  44  Pac.  1046; 
McGuire  v.  Railroad  C.o.,  46  La.  Ann.  1543,  16  South.  457;  Moore  v.  Raihvay 
Co.,  126  Mo.  265,  29  S.  W.  9;  Little  v.  Railway  Co.,  88  Wis.  402,  60  N.  W. 
705;  Keefe  v.  Railway  Co.,  92  Iowa,  182,  60  N.  W.  503. 

B  Little  v.  Railway  Co.,  88  Wis.  402,  60  N.  W.  705;  and  see  Carroll  v.. 
Railroad  Co.,  13  Minn.  30  (Gil.  18);  Griggs  v.  Fleckenstein,  14  Minn.  81 
(Gil.  62). 

e  Stucke  v.  Railroad  Co.,  9  Wis.  202;  Straus  v.  Railroad  Co.,  75  Mo.  185; 
Haley  v.  Railroad  Co.,  21  Iowa,  15;  Needham  v.  Railroad  Co.,  37  Cal.  409; 
Reynolds  v.  Hindman,  32  Iowa,  146;  Northern  Cent.  Ry.  Co.  v.  State,  29  Md. 
420;  Connor  v.  Traction  Co.,  173  Pa.  St.  602,  34  Atl.  238;  Central  Railroad" 
&  Banking  Co.  v.  Newman,  94  Ga.  560,  21  S.  E.  219;  King  v.  Railway  Co. 
(Minn.)  79  N.  W.  611. 

i  Corneilson  v.  Railway  Co.,  50  Minn.  23,  52  N.  W.  224. 


§    17)  RELATIVE   TIME    OF    PLAINTIFF'S    NEGLIGENCE.  53 

temporaneous,  the  liability  must  be  referred  to  the  author  of  the  act 
which  was  the  proximate  cause  of  the  injury. 

Lastly,  when  the  negligence  of  plaintiff  is  subsequent  to  that  of  de- 
fendant, the  ordinary,  typical  case  exists  where  the  plaintiff,  having 
knowledge  of  defendant's  prior  negligence,  is  bound  to  use  ordinary 
care,  in  the  circumstances,  to  avoid  its  probable  consequences.  If 
he  fails  to  use  such  ordinary  care,  and  the  failure  is  the  proximate 
cause  of  his  injury,  he  cannot  recover.  Thus,  if  a  person,  with  full 
and  present  knowledge  of  the  defective  condition  of  a  sidewalk,  and 
of  the  risks  incident  to  its  use,  voluntarily  attempts  to  travel  upon  it, 
when  the  defect  could  easily  have  been  avoided  by  going  around  it, 
he  is  not  in  the  exercise  of  reasonable  care,  but  must  be  presumed 
to  have  taken  his  chances,  and,  if  injury  results,  he  cannot  recover 
against  the  city.8 

It  is  therefore  immaterial  at  what  time  the  negligence  of  plaintiff 
operated, — whether  it  was  prior  to,  contemporaneous  with,  or  subse- 
quent to  defendant's  negligence.  If  it  was  the  proximate  cause  of 
his  injury,  he  cannot  recover.  The  principle  has  been  tersely  put  in 
the  following  language:  ''The  party  who  last  has  a  clear  opportunity 
of  avoiding  the  accident,  notwithstanding  the  negligence  of  his  oppo- 
nent, is  considered  solely  responsible  for  it." 9 

SAME— PLAINTIFF'S  NEGLIGENCE   AFTER   THE  ACCIDENT 

17.  Plaintiff's  negligence  occurring  after  the  accident,  and 
thereby  increasing  the  damage,  is  not  a  defense  to 
his  right  of  action,  but  is  a  bar  to  recovery  of  the 
excess  of  damages  thus  produced. 

In  other  words,  plaintiff  being  without  fault  in  causing  the  legal 
injury,  defendant  is  liable  for  so  much  of  the  damage  only  as  proxi- 
mately  resulted  from  his  own  negligence.1 

s  Wright  v.  City  of  St.  Cloud,  54  Minn.  94,  55  N.  W.  819. 

9  2  Quart.  Law  Rev.  (1886)  p.  507. 

§  17.  i  Thomas  v.  Kenyon,  1  Daly  (N.  Y.)  132;  Gould  v.  McKenna,  86  Pa. 
St.  297;  Secord  v.  Railway  Co.,  5  McCrary,  515,  18  Fed.  221;  Tift  v.  Jones, 
52  Ga.  538;  Sherman  v.  Iron-Works  Co.,  2  Allen  (Mass.)  524;  Hunt  v.  Gas- 
light Co.,  1  Allen  (Mass.)  343;  Wright  v.  Telegraph  Co.,  20  Iowa,  195;  Chase 
v.  Railroad  Co.,  24  Barb.  (X.  Y.)  273;  Hamilton  v.  McPherson,  28  N.  Y.  72; 


54  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 

It  is  immaterial  that  the  injury  was  aggravated  by  subsequent  mal- 
treatment of  physician,  or  by  lack  of  judgment  on  the  part  of  the 
plaintiff,  provided  that  good  faith  and  ordinary  prudence  in  the  cir- 
cumstances are  shown.2 

The  above  rule  has,  of  course,  no  application  except  in  those  cases 
where  a  distinct  division  and  apportionment  of  the  injury  or  damages 
can  be  made. 

CONTRIBUTORY  NEGLIGENCE  OF  THIRD  PERSONS. 

18.  The  negligent  act  of  a  stranger,  contributing  to  pro- 
duce the  injury  complained  of,  is  no  defense  to  the 
action;1  but  in  certain  circumstances  the  plaintiff 
may  be  so  identified  -with  a  third  person,  either  by 
express  contract  or  by  implication  of  law,  as  to  be 
chargeable  with  his  misconduct,  and  make  his  neg- 
ligence his  own. 

Milton  v.  Steamboat  Co.,  37  N.  Y.  210;  Greenland  v.  Chaplin,  5  Exch.  243. 
Can  recover  up  to  excess  caused  by  his  own  negligence.  Stebbins  v.  Rail- 
road Co.,  54  Vt.  464;  Miller  v.  Mariner's  Church,  7  Me.  51;  State  v.  Powell,  44 
Mo.  436;  Douglass  v.  Stephens,  18  Mo.  362;  Illinois  Cent.  R.  Co.  v.  Finnigan, 
21  111.  646;  Worth  v.  Edmonds,  52  Barb.  (N.  Y.)  40.  Where  there  are  two  or 
more  injuries,  to  one  of  which  only  plaintiff  has  contributed,  he  can  recover 
for  the  other.  Northern  Cent.  Ry.  Co.  v.  State,  29  Md.  420.  Plaintiff,  being 
injured  on  a  railway,  died  from  gross  negligence  of  employe's.  It  was  held 
immaterial  whether  he  contributed  to  the  original  injury.  If  his  death  resulted 
from  defendant's  negligence,  his  representatives  could  recover. 

2  Lyons  v.  Railroad  Co.,  57  N.  Y.  4S9;  Hope  v.  Railroad  Co.,  40  Hun  (X.  Y.) 
438;  Ehrgott  v.  Mayor,  etc.,  96  N.  Y.  264;  Lawrence  v.  Railroad  Co.,  29  Conn. 
390;  Stover  v.  Inhabitants  of  Bluehill,  51  Me.  439;  Simpson  v.  City  of  Keokuk, 
34  Iowa,  568;  Sauter  v.  Railroad  Co.,  66  N.  Y.  50;  Vandenburgh  v.  Truax, 
4  Denio  (N.  Y.)  464;  Pollett  v.  Long,  56  N.  Y.  200;  Standard  Oil  Co.  v.  Bow- 
ker,  141  Ind.  12,  40  N.  E.  128;  Strudgeon  v.  Village  of  Sand  Beach,  107  Mich. 
496,  65  N.  W.  616;  Bradford  City  v.  Downs,  126  Pa.  St.  622,  17  Atl.  884. 

§§  18-20.  i  Webster  v.  Railroad  Co.,  38  N.  Y.  260;  Barrett  v.  Railroad 
Co.,  45  N.  Y.  028;  Arctic  Fire  Ins.  Co.  v.  Austin,  69  X.  Y.  470;  Paulmier  v. 
Railroad  Co.,  34  N.  J.  Law,  151.  And  see  Sullivan  v.  Railroad  Co..  30  Pa.  St. 
234;  Gee  v.  Railroad  Co.,  L.  R.  8  Q.  B.  161,  174;  Harrison  v.  Railroad  Co., 
3  Hurl.  &  C.  231;  Burrows  v.  Coke  Co.,  L.  R.  5  Exch.  Cas.  67;  Warren  v. 
Railroad  Co.,  8  Allen  (Mass.)  227;  Eaton  v.  Railroad  Co.,  11  Allen  (Mass.)  503; 
Ingalls  v.  Bills,  9  Mete.  (Mass.)  1;  McElroy  v.  Railroad  Corp.,  4  Cush.  (Mass.) 
400;  Cayzer  v.  Taylor,  10  Gray  (Mass.)  274;  Churchill  v.  Holt,  127  Mass.  165. 


§§    18-20)        CONTRIBUTORY    NEGLIGENCE^  OF    THIRD    PERSONS.  55 

19.  To  make  the  misconduct  of  a  third  party  a  defense  to 

the  action, — to  make  it  contributory  negligence, 
within  the  definition, — it  must  be  shown  that  be- 
tween the  plaintiff  and  the  person  contributing  to 
cause  the  injury  there  existed  such  a  relation  or 
connection  as  to  make  the  former  legally  responsible 
for  the  negligent  act  of  the  latter. 
Such  identification  or  relationship  may  exist  between 

(a)  Master  and  servant  or  principal  and  agent. 
(1)  Shipper  and  carrier  of  goods. 

(b)  Guardians  and  persons  non  sui  juris. 

(1)  Children. 

(2)  Lunatics,  idiots,  etc. 

SAME— MASTER  AND  SERVANT  OR  PRINCIPAL  AND  AGENT. 

20.  When  the  relation   and   circumstances   are   such  that 

the  master  would  be  responsible  for  the  negligent 
acts  of  his  servant  in  an  action  for  injuries  caused 
thereby,  such  negligence  may  be  imputed  to  the 
master  as  contributing  to  the  injury  complained  of 
by  him. 

Thus,  where  the  servant,  being  in  charge  of  plaintiff's  team,  negli- 
gently left  the  horses  unhitched,  and  engaged  in  a  boisterous  alterca- 
tion with  the  defendant,  at  which  the  horses  took  fright,  and  ran 
away,  and  were  injured,  in  this  case  the  court  says:  "But  if  Keddick 
[the  servant]  was  guilty  of  such  negligence  in  the  care  of  the  team  as 
would  preclude  him,  if  he  had  been  its  owner,  from  maintaining  an 
action  against  Reasor  [the  defendant],  this  negligence  must  be  equally 
fatal  in  an  action  brought  by  this  plaintiff,  who  confided  the  team  to 
Reddick's  [his  servant's]  care."  2  It  is  apparent  that  if  the  horses,  in 

2  Puterbaugh  v.  Reasor.  9  Ohio  St.  484;  and  nearly  identical,  Page  v. 
Hodge,  63  X.  H.  610,  4  Atl.  805.  Also,  Toledo  &  W.  Ky.  Co.  v.  Goddard, 
25  Ind.  185;  Lake  Shore  &  M.  S.  R.  Co.  v.  Miller,  25  Mich.  274;  Louisville, 
N.  A.  &  C.  Ry.  Co.  v.  Stommel,  126  Ind.  35,  25  X.  E.  863;  Welty  v.  Railroad 
Co.,  105  Ind.  55,  4  X.  E.  410;  Abbitt  v.  Railway  Co.,  150  Ind.  498,  50  X.  E. 
729;  Xesbit  v.  Town  of  Garner,  75  Iowa,  314,  39  X.  W.  516;  City  of  Joliet  v. 


56  CONTRIBUTORY    NEGLIGENCE.  (Ch.    2 

running  away,  had  injured  a  traveler,  he  could  have  maintained  his 
action  against  the  master,  who  was  responsible  for  his  servant's  negli- 
gence. 

But  where  the  contributory  negligence  is  based  upon  knowledge  of 
the  existence  of  danger,  the  negligence  of  the  agent  cannot  be  imput- 
ed to  the  principal,  unless  the  failure  to  communicate  the  knowledge 
is  in  itself  negligence  on  the  part  of  the  agent.3  So,  also,  the  knowl- 
edge of  the  principal  is  not  imputed  to  the  agent  unless  it  appears 
that,  in  the  circumstances,  ordinary  care  and  prudence  would  have 
permitted  and  required  that  he  should  inform  the  agent,  in  order  that 
he  might  avoid  the  injury;  as,  where  an  obstacle  is  negligently  left 
in  the  road  and  the  principal,  having  knowledge  of  it,  but  no  reason- 
able cause  to  apprehend  danger,  fails  to  warn  his  agent,  who,  with- 
out personal  fault,  drives  his  principal's  wagon  against  it.4  But 
where  the  negligence  of  the  master  contributes  with  that  of  a  third 
person,  to  the  injury  of  his  servant,  it  cannot  be  imputed  to  the 
servant  in  an,  action  against  such  third  party.5  Nor  can  the  con- 
tributory negligence  of  a  co-employ^  be  imputed  to  the  plaintiff  in  a 
suit  against  the  principal.6 

21.  SHIPPER  AND  CARRIER  OF  GOODS— By  weight  of 
authority,  the  shipper  of  goods  is  so  identified  -with 
the  common  carrier  that  he  cannot  recover  in  an 
action  against  a  third  person  for  injuries  to  the  goods, 
to  which  the  negligence  of  the  carrier  contributed. 

The  doctrine  of  identification  reached  its  extreme  limit  in  the 
famous,  but  now  exploded,  case  of  Thorogood  v.  Bryan,1  wherein  it 

Seward,  86  111.  402;  Minster  v.  Railway  Co.,  53  Mo.  App.  276;  Bronson  v. 
Railroad  Co.,  24  App.  Div.  262,  48  N.  Y.  Supp.  257. 

3  Weisser's  Adm'rs  v.  Denison,  10  N.  Y.  68;  Board  of  Com'rs  of  Boone  Co. 
v.  Hutchler,  137  Ind.  140,  36  N.  E.  534;  Fuller  v.  Benett,  2  Hare,  402. 

*  Gannon  v.  Bangor,  38  Me.  443. 

B  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Garteiser,  9  Tex.  Civ.  App.  456,  29  S.  W. 
939,  where  a  railroad  contractor  negligently  failed  to  send  out  a  flagman,  and 
his  employ^  was  injured. 

e  Poor  v.  Sears,  154  Mass.  539,  28  N.  E.  1046;  Seaman  v.  Koehler.  122  X.  Y. 
646,  25  N.  E.  353;  Abbitt  v.  Railroad  Co.  (Tnd.  Sup.)  40  X.  E.  40;  McCormack 
v.  Railroad  Co.,  18  App.  Div.  333,  46  N.  Y.  Supp.  230. 

§  21.     18  C.  B.  115. 


§    21)  SHIPPER    AND    CARRIER    OF    GOODS.  57 

was  held  that  a  passenger  in  a  public  conveyance  was  so  identified 
with  the  vehicle,  although  having  no  authority  over  the  driver,  as  to 
be  chargeable  with  any  negligence  of  the  proprietors  which  contrib- 
uted with  the  negligence  of  a  stranger  to  injure  the  passenger.  Al- 
though this  decision  is  no  longer  followed  in  either  the  English  or 
American  courts,2  with  possibly  one  or  two  exceptions  in  the  latter, 
the  case  stands  to-day  as  a  monument  to  the  absurdity  of  a  doctrine 
founded  on  the  shadow  of  a  principle  and  carried  to  such  an  extreme 
as  to  be  purely  scholastic  and  eminently  unjust. 

But  long  prior  to  the  decision  in  Thorogood  v.  Bryan,  it  was  well 
settled  in  England  that  as  between  the  common  carrier  of  goods  and 
the  shipper,  there  was  such  privity  of  negligence  as  would  prevent  the 
latter  from  recovering  against  a  third  person  for  injuries  to  which 
the  negligence  of  the  former  contributed.3 

The  contract  of  agency  between  the  shipper  and  the  carrier  is  per- 
fect. The  carrier's  care  and  control  of  the  goods  is  absolute.  The 

2  The  Bernina,  12  Prob.  Div.  58,  affirmed  in  13  App.  Cas.  1;  Little  v.  Hack- 
•ett,  116  U.  S.  366,  6  Sup.  Ct.  391.  In  Chapman  v.  Railroad  Co.,  19  N.  Y.  341, 
Johnson,  C.  J.,  says:  "He  was  a  passenger  on  the  Harlem  cars,  conducting 
himself  as  he  lawfully  ought,  having  no  control  over  the  train  or  its  manage- 
ment; on  the  contrary,  bound  to  submit  to  the  regulations  of  the  company 
And  the  directions  of  their  officers.  To  say  that  he  is  chargeable  with  negli- 
gence because  they  have  been  guilty  is  plainly  not  founded  on  any  fact  of 
•conduct  on  his  part,  but  is  mere  fiction."  Webster  v.  Railroad  Co.,  38  X.  Y. 
260;  Colegrove  v.  Railroad  Co.,  6  Duer,  382,  affirmed  in  20  N.  Y.  492;  Bar- 
rett v.  Railroad  Co.,  45  N.  Y.  628;  Busch  v.  Railroad  Co.,  29  Hun  (X.  Y.)  112; 
Harvey  v.  Railroad  Co.,  23  X.  Y.  Wkly.  Dig.  198;  Bennett  v.  Transportation 
Co.,  36  X.  J.  Law,  225;  New  York,  L.  E.  &  W.  R.  Co.  v.  Steinbrenner,  47  X. 
J.  Law,  161;  Transfer  Co.  v.  Kelly,  36  Ohio  St.  86;  Town  of  Albion  v.  Het- 
rick,  90  Ind.  545;  Wabash,  St.  L.  &  P.  R.  Co.  v.  Shacklet,  105  111.  364;  Cud- 
dy v.  Horn,  46  Mich.  596,  10  X.  W.  32;  Malmsten  v.  Railroad  Co.,  49  Mich.  94, 
13  X.  W.  373;  Lake  Shore  &  M.  S.  R.  Co.  v.  Miller,  25  Mich.  274;  Louisville, 
€.  &  L.  R.  Co.  v.  Case's  Adm'r,  9  Bush  (Ky.)  728;  Danville,  L.  &  X.  Turnpike 
Co.  v.  Stewart,  2  Mete.  (Ky.)  119;  Philadelphia,  W.  &  B.  R.  Co.  v.  Hogeland.  66 
Md.  149,  7  Atl.  105;  McMahon  v.  Davidson,  12  Minn.  357  (Gil.  232);  Foil- 
man  v.  City  of  Mankato,  35  Minn.  522,  29  X.  W.  317;  Hillnian  v.  Xewingtou, 
57  Cal.  56;  Tompkins  v.  Railroad  Co.,  66  Gal.  163,  4  Pac.  1165;  Roach  v.  Rail- 
road Co.,  93  Ga.  785,  21  S.  E.  67;  Guif,  C.  &  S.  F.  Ry.  Co.  v.  Pendry,  87  Tex. 
553,  29  S.  W.  1038. 

s  Vanderplank  v.  Miller,  1  Moody  &  M.  169;  Arctic  Fire  Ins.  Co.  v.  Austin, 
69  X.  Y.  470. 


58  CONTRIBUTORY  NEGLIGENCE.  (Ch.  2 

owner  himself  could  not  exercise  any  greater  authority  than  that  of 
the  agent  in  possession.  The  representation  is  complete,  and  the 
contributory  negligence  of  the  carrier  should  be  imputed  to  the  owner 
of  the  goods  to  the  extent  of  depriving  him  of  any  remedy  against  a 
third  party  for  a  loss  to  which  the  wrongful  act  of  his  agent  has  con- 
tributed.4 

22.  PASSENGER  AND  COMMON  CARRIER— By  weight 

of  authority,  in  the  carriage  of  passengers,  the  neg- 
ligence of  the  carrier  contributing  with  that  of  a 
third  person  to  injure  plaintiff  is  not  a  defense  in 
an  action  by  the  latter  against  the  third  person. 

23.  Although  the  passenger  is  not   so  identified  with  the 

carrier  that  the  latter's  negligence  is  ipso  facto  im- 
puted to  him,  he  is,  nevertheless,  bound  to  exercise 
ordinary  care  and  prudence. 

CONVERSELY — If  the  negligence  of  the  occupant  of  a  ve- 
hicle contributes  with  that  of  the  driver  and  a  third 
person,  the  former  cannot  recover  against  the  lat- 
ter.1 

The  relation  of  passenger  and  carrier  stands  on  a  different  basis, 
and  requires  further  consideration.  The  carrier  of  passengers  is 
.not  an  insurer  of  their  safe  transportation.  He  has  but  a  partial 
and  incomplete  control  over  them,  and  is  in  no  sense  their  representa- 
tive. The  contract  is  one  of  limited  agency  only,  and,  the  conduct 
of  the  carrier  being  beyond  the  influence  and  direction  of  the  passen- 
ger, there  is  no  assignable  reason  why  he  should  be  responsible  for  it. 
While,  therefore,  there  is  some  lack  of  uniformity  in  the  decisions,  it 
is  believed  that  the  weight  of  authority,  and  certainly  that  of  reason, 

*  Arctic  Fire  Ins.  Co.  v.  Austin,  69  N.  Y.  470;  Duggins  v.  Watson,  15  Ark. 
118;  Broadwell  v.  Swigert,  7  B.  Mon.  (Ivy.)  39.  See  cases  reviewed  in  Simp- 
son v.  Hand,  6  Wliart.  (Pa.)  311. 

§§  22-23.  i  Beach,  Contrib.  Neg.  (2d  Ed.)  §  115.  If  the  occupant  voluntarily 
rides  with  driver,  not  a  common  carrier,  over  ground  obviously  dangerous,  he 
cannot  recover  against  the  township.  Crescent  Tp.  v.  Anderson,  114  Pa.  St.  G43, 
8  Atl.  379.  Riding  with  back  towards  driver  in  approaching  well-known  rail- 
road crossing,  and  failure  to  look  and  listen  or  take  any  precautions,  is  con- 
tributory negligence.  Dean  v.  Railroad  Co.,  129  Pa.  St  514,  18  Atl.  718. 


§§    22-23)  PASSENGER    AND    COMMON    CARRIER.  59 

sustains  the  proposition  that  in  the  carriage  of  passengers  the  negli- 
gence of  the  carrier,  contributing  with  that  of  a  third  person  to  in- 
jure plaintiff,  is  not  a  defense  in  an  action  against  the  third  person.* 
When  the  injury  by  a  third  person  is  inflicted  on  a  passenger  in  a 
railroad  car,  the  question  of  actual  negligent  conduct  on  his  part  i& 
seldom  raised,  by  reason  of  his  entire  lack  of  control  over  the  man- 
agement of  the  train.  When,  however,  the  conveyance  is  a  carriage 
or  similar  vehicle,  the  circumstances  may  be  such  that  he  is  able 
and  bound  to  exercise  some  discretion  regarding  its  management.  In 
such  cases  he  is  held  to  the  use  of  such  ordinary  care  and  prudence 
as  the  circumstances  may  demand.3  But  where  one  travels  in  a 
vehicle  over  which  he  has  no  control,  no  relationship  of  principal  and 
agent  exists  between  him  and  the  owner  or  driver,  and,  although  he 
so  travels  voluntarily,  he  is  not  responsible  for  the  negligence  of  the 
driver  when  he  himself  is  not  chargeable  with  negligence.*  Other- 

2  Chapman  v.  Railroad  Co.,  19  X.  Y.  341.  Vide  language  of  court  in  this 
case,  section  21,  note  2,  supra,  Danville,  L.  &  X.  Turnpike  Oo.  v.  Stewart,  2 
Mete.  (Ky.)  119;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Pendry,  87  Tex.  553,  29  S.  W. 
1038.  See,  also,  Beach,  Contrib.  Xeg.  (2d  Ed.)  §  114. 

s  Little  v.  Hackett,  116  U.  S.  366,  6  Sup.  Ot.  391;  Haff  v.  Railway  Co.,  14 
Fed.  558;  The  Washington  and  The  Gregory,  9  Wall.  513;  Gray  v.  Railroad 
Co.,  24  Fed.  168;  Masterson  v.  Railroad  Co.,  84  N.  Y.  247;  Robinson  v.  Rail- 
road Co.,  66  X.  Y.  11;  Dyer  v.  Railroad  Co.,  71  X.  Y.  228;  Smith  v.  Railroad 
Co.,  38  Hun  (X.  Y.)  33;  Harris  v.  Uebelhoer,  75  X.  Y.  169;  Meenagh  v.  Buck- 
master,  26  App.  Div.  451,  50  X.  Y.  Supp.  85.  But  the  extreme  of  this  rule  was 
held  in  Brannen  v.  Gravel-Road  Co.,  115  Ind.  115,  17  X.  E.  202,  where  it  was 
said  that,  unless  plaintiff  showed  that  he  was  not  negligent  in  trying  to  stop 
the  intoxicated  driver,  he  could  not  recover.  See,  however,  Town  of  Knights- 
town  v.  Musgrove,  116  Ind.  121,  18  X.  E.  452,  which  distinguishes  the  former 
case. 

*  Little  v.  Hackett,  supra;  Haff  v.  Railway  Co.,  supra;  Masterson  v.  Rail- 
road Co.,  supra;  Dyer  v.  Railroad  Co.,  supra;  Smith  v.  Railroad  Co.,  supra; 
Harris  v.  Uebelhoer,  supra;  Bennett  v.  Railroad  Co.,  133  X.  Y.  563,  30  X.  E. 
1149;  Alabama  &  V.  Ry.  Oo.  v.  Davis,  69  Miss.  444,  13  South.  693;  Baltimore 
&  O.  R.  Co.  v.  State,  79  Md.  335,  29  Atl.  518,  following  Philadelphia,  W.  &  B. 
R.  Co.  v.  Hogeland,  66  Md.  149,  7  Atl.  105;  Davis  v.  Guarnieri,  45  Ohio  St 
470,  15  X.  E.  350;  Randolph  v.  O'Riordon,  155  Mass.  331,  29  X.  E.  583;  Pyle 
v.  Clark,  25  C.  C.  A.  190,  79  Fed.  744;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Boyts, 
16  Ind.  App.  640,  45  X.  E.  812;  Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v.  Rogers, 
91  Tex.  52,  40  S.  W.  956;  Harper  v.  Railroad  Co.,  22  App.  Div.  273,  47  X.  Y. 
Supp.  933;  Baltimore  &  O.  R.  Co.  v.  Adams,  10  App.  D.  C.  97;  Bryant  v.  Rail- 


•60  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 

wise,  however,  if  the  carrier  or  driver  was  in  fact  the  agent  of  the 
•plaintiff,5  or  was  incited  or  encouraged  by  him  in  his  negligent  acts.6 

£4.  NEGLIGENCE  OF  HUSBAND  IMPUTED  TO  WIFE— 
In  general,  in  an  action  by  or  for  the  wife,  the  con- 
tributory negligence  of  the  husband  is  not  charge- 
able to  her,  unless  she  knowingly  adopted  or  con- 
curred in  his  negligent  act. 

road  Oo.  (Tex.  Civ.  App.)  46  S.  W.  82;  Ritger  v.  City  of  Milwaukee,  99  Wis. 
190,  74  X.  W.  815;  Robinson  v.  Navigation  Co.,  20  C.  C.  A.  86,  73  Fed.  883; 
Weldon  v.  Railroad  Co.,  3  App.  Div.  370,  38  N.  Y.  Supp.  206;  Ouverson  v.  City 
•of  Grafton,  5  N.  D.  281,  65  N.  W.  676;  Cincinnati  St.  Ry.  Co.  v.  Wright,  54 
Ohio  St.  181,  43  X.  E.  688;  Texas  &  P.  Ry.  Co.  v.  Curlin,  13  Tex.  Civ.  App. 
505,  36  S.  W.  1003;  Roach  v.  Railroad  Co.,  93  Ga,  785,  21  S.  E.  67;  Gulf,  C. 
&  S.  F.  Ry.  Co.  v.  Pendry,  87  Tex.  553,  29  S.  W.  1038;  Union  Pac.  R.  Co.  v. 
Lapsley's  Adm'r,  2  C.  C.  A.  149,  51  Fed.  174,  following  Little  v.  Hackett,  116 
U.  S.  366,  6  Sup.  Ct.  391;  Missouri  Pac.  Ry.  Co.  v.  Texas  Pac.  Ry.  Co.,  41 
Fed.  316;  Whelan  v.  Railroad  Co.,  38  Fed.  15.  But  in  Whittaker  v.  City  of 
Helena,  14  Mont.  124,  35  Pac.  904,  and  Otis  v.  Town  of  Janesville,  47  Wis.  422, 
2  X.  W.  783,  it  was  held  that  the  driver's  negligence  was  imputed  to  a  volun- 
tary passenger,  and  the  latter  could  not  recover  damages  against  the  city  for  in- 
juries caused  by  city's  negligence,  where  the  negligence  of  the  driver  contrib- 
uted to  the  injury.  And  in  Xew  York,  where  plaintiff  occupied  seat  with 
driver  and  had  equal  knowledge  and  opportunity  to  discover  the  danger,  the 
driver's  negligence  was  imputed  to  him;  but  this  is  clearly  within  our  rule. 
Brickell  v.  Railroad  Co.,  120  X.  Y.  290,  24  X.  E.  449.  In  Indiana  the  inclina- 
tion is  clearly  towards  imputing  the  driver's  negligence  to  the  passenger. 
Brannen  v.  Gravel  Rd.  Co.,  115  Ind.  115,  17  X.  E.  202;  Town  of  Knightstown 
v.  Musgrove,  116  Ind.  121,  18  X.  E.  452.  Also  in  Iowa,  Slater  v.  Railway  Co., 
71  Iowa,  209,  32  X.  W.  264;  but  overruled  in  Xesbit  v.  Town  of  Garner,  75 
Iowa,  314,  39  X.  W.  516. 

s  In  Brickell  v.  Railroad  Co.,  120  X.  Y.  290,  24  X.  E.  449,  the  court  says: 
"The  rule  that  the  driver's  negligence  may  not  be  imputed  to  the  plaintiff 
should  have  no  application  to  this  case.  Such  rule  is  only  applicable  to  cases 
where  the  relation  of  master  and  servant  or  principal  and  agent  does  not  ex- 
ist, or  where  the  passenger  is  seated  away  from  the  driver,  or  is  separated 
from  the  driver  by  an  inclosure,  and  is  without  opportunity  to  discover  danger 
and  inform  the  driver  of  it.  It  is  no  less  the  duty  of  the  passenger  where  he 
has  the  opportunity  to  do  so  than  of  the  driver  to  learn  of  danger,  and  avoid 
it,  if  practicable."  Lake  Shore  &  M.  S.  R.  Co.  v.  Miller,  25  Mich.  274;  Eaton 
v.  Railroad  Co.,  11  Allen  (Mass.)  500;  Stevens  v.  Armstrong,  6  X.  Y.  435; 
Omaha  &  R.  V.  Ry.  Co.  v.  Talbot,  48  Xeb.  627,  67  X.  W.  599. 

«  Stafford  v.  City  of  Oskaloosa,  57  Iowa,  749,  11  X.  W.  008. 


§§    25—27)  IMPUTED     NEGLIGENCE.  61 

There  is  an  apparent  conflict  of  authority  as  to  the  effect  of  the- 
husband's  contributory  negligence  on  the  wife's  right  of  action 
against  a  third  person.  Where  the  rights  of  the  wife  are  still  limit- 
ed by  the  rules  of  the  common  law,  it  is  apprehended  that  the  con- 
tributory negligence  of  the  husband  would  bar  the  wife's  recovery  to- 
the  same  extent  which  it  would  bar  his  own  in  an  action  to  recover 
for  loss  of  services.1  But  in  those  states  where  the  wife  can  bring, 
such  an  action  in  her  own  name,  and  recover  damages  for  her  separate 
use,  it  seems  that  the  husband's  negligence  is  not  chargeable  to  her 
unless  she  knowingly  adopts  or  concurs  in  his  negligent  conduct,2 
or  makes  him  her  agent.3 

IMPUTED  NEGLIGENCE. 

25.  The  negligence  of  a  third  person  may  prevent  a  re- 
covery by  the  plaintiff  -when  the  relation  is  such 
that,  in  law,  the  negligent  conduct  of  the  former  is 
imputed  to  the  latter. 

§  24.  i  McFadden  v.  Railway  Co.,  87  Cal.  464,  25  Pac.  681;  Borough  of 
Xanticoke  v.  Warne,  106  Pa.  St  373;  Shear.  &  R.  Xeg.  (4th  Ed.)  §  67;  Honey 
v.  Railway  Co.,  59  Fed.  423. 

2  Yahn  v.  City  of  Ottuinwa,  60  Iowa,  429,  15  N.  W.  257;  Xesbit  v.  Town  of 
Garner,  75  Iowa,  314,  39  X.  W.  516;  Peck  v.  Railroad  Co.,  50  Conn.  379.  In  Shef- 
field v.  Telephone  Co.,  36  Fed.  164,  and  Shaw  v.  Craft,  37  Fed.  317,  the  United. 
States  court  holds  that  the  husband's  "contributory"  negligence  will  not  de- 
leat  the  wife's  recovery  if  defendant's  negligence  "directly"  contributed  to  the 
injury.  But  see  Honey  v.  Railway  Oo.,  59  Fed.  423,  where  it  is  held  that  to 
render  the  contributory  negligence  of  a  wife,  regarded  as  the  agent  or  servant 
of  her  husband,  imputable  to  him,  the  circumstances  must  be  such  that  he 
would  be  liable  for  her  negligent  act  if  it  had  resulted  in  injury  to  a  third 
person.  Flori  v.  City  of  St.  Louis,  3  Mo.  App.  231;  Hedges  v.  City  of  Kansas, 
18  Mo.  App.  62;  Plate  v.  City  of  Cohoes,  24  Hun  (X.  Y.)  101,  affirmed  in  89' 
N.  Y.  219;  Street  v.  Inhabitants  of  Holyoke,  105  Mass.  82;  Louisville,  X.  A. 
&  C.  Ry.  Co.  v.  Creek,  130  Ind.  139,  29  X.  E.  481;  Lake  Shore  &  M.  S.  Ry.  Co. 
v.  Mclntosh,  140  Ind.  201,  38  X.  E.  476;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Ku- 
tac,  78  Tex.  473,  13  S.  W.  327;  Reading  Tp.  v.  Telfer,  57  Kan.  798,  48  Pac. 
134;  Munger  v.  City  of  Sedalia,  66  Mo.  App.  629;  Finley  v.  Railway  Co.,  71 
Minn.  471,  74  X.  W.  174.  In  Carlisle  v.  Town  of  Sheldon,  38  Vt.  440,  the  court 
follows  the  reasoning  in  Thorogood  v.  Bryan,  and  imputes  the  husband's  neg- 
ligence to  the  wife,  ipsa  relatione. 

s  Davis  v.  Guarnieri,  45  Ohio  St  470,  15  X.  E.  350;  Honey  v.  Railway  Co.,. 
59  Fed.  423.  See  section  24,  note  2,  supra. 


62  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 

26.  In  an  action  by  the  parent  in  his  own  behalf  for  in- 

juries to  his  minor  child,  the  contributory  negli- 
gence of  the  parent  or  of  the  infant  is  a  good  de- 
fense. 

27.  In  an  action  in  behalf  of  the  child  for  injuries  suffered 

by  him 

(a)  The  failure  on  his  part  to  exercise  the  degree  of  care 

reasonably  to  be  expected  in  the  circumstances  of 
children  of  his  age,  if  it  contributes  to  the  injury, 
is  a  defense. 

(b)  If  the  negligence  of  the  parent  contributes  to  the  in- 

jury, the  weight  of  authority  and  reason  is  opposed 
to  imputing  his  negligence  to  the  infant. 

When  the  action  is  for  the  benefit  of  the  parent,  it  is  founded  on 
the  quasi  relation  of  master  and  servant,  the  damnum  being  the  tech- 
nical loss  of  service.  In  theory,  therefore,  this  class  of  actions  does 
not  properly  fall  under  this  subdivision.  It  is,  however,  considered 
at  this  time  for  the  purpose  of  emphasizing  the  danger  of  confusing  it 
with  those  cases  where  the  personal  rights  of  the  infant  constitute  the 
issue.  When  the  parent  is  the  beneficiary  of  the  action,  the  ordi- 
nary rules  of  contributory  negligence  apply  to  his  conduct,1  and,  if 
the  contributory  negligence  of  the  child  is  such  as  would  bar  an 

§§  25-27.  i  Glassey  v.  Railroad  Co.,  57  Pa.  St.  172;  Bellefontaine  Ry.  Co. 
v.  Snyder,  24  Ohio  St.  670;  Bellefontaine  &  I.  R.  Co.  v.  Same,  18  Ohio  St.  399. 
In  the  last  two  cases  the  actions  were  on  the  same  state  of  facts,  for  the 
benefit  of  the  parent  and  child,  respectively.  In  the  former  the  contributory 
negligence  of  the  parent  was  held  a  bar,  and  in  the  latter  was  held  no  de- 
fense. Pittsburg,  A.  &  M.  Ry.  Co.  v.  Pearson,  72  Pa.  St.  169;  Philadelphia  & 
E.  R.  Co.  v.  Long,  75  Pa.  St.  257;  Isabel  v.  Railroad  Go.,  60  Mo.  475;  Daley 
v.  Railroad  Co.,  26  Conn.  591;  Albertson  v.  Railroad  Co.,  48  Iowa,  292;  Pitts- 
burgh, Ft.  W.  &  C.  Ry.  Co.  v.  Vining's  Adm'r,  27  Ind.  513;  City  of  Chicago 
v.  Major,  18  111.  349;  Louisville  &  P.  Canal  Co.  v.  Murphy,  9  Bush  (Ky.)  522; 
Williams  v.  Railroad  Co.,  60  Tex.  205;  Baltimore  &  O.  R.  Co.  v.  State,  30  Md. 
47;  Walters  v.  Railroad  Co.,  41  Iowa,  71;  Bamberger  v.  Railway  Co.,  95  Tenn. 
18,  31  S.  W.  163;  Spokane  &  P.  Ry.  Co.  v.  Holt  (Idaho)  40  Pac.  56;  City  of  Pe- 
kin  v.  McMahon,  154  111.  141,  39  X.  E.  484;  Xewdoll  v.  Young.  80  Hun,  364, 
50  N.  Y.  Supp.  84;  Chicago  City  Ry.  Co.  v.  Wilcox,  138  111.  370,  27  X.  E.  899. 
JBut  see  Wright  v.  Railroad  Co.,  4  Allen  (Mass.)  283. 


§§    25-27)  IMPUTED    NEGLIGENCE.  63 

action  for  his  own  benefit,  it  will  likewise  bar  the  action  of  the  par- 
ent.2 

Degree  of  Care  Required  of  the  Parent. 

In  examining  the  conduct  of  the  parent  to  determine  whether  he 
has  been  negligent  in  the  care  of  the  child,  reference  must  be  had  not 
only  to  the  age  of  the  child,  and  the  circumstances  attending  the  acci- 
dent, but  to  the  parent's  station  and  occupation  in  life,  and  his  gen- 
eral ability  to  place  safeguards  about  his  children.3  To  constitute  a 
defense  to  his  action,  it  must  appear  that  the  parent  was  actually  in 
fault,4  and  that  the  fault  clearly  contributed  to  the  injury.5  To  al- 

2  Kennard  v.  Burton,  25  Me.  39;  Burke  v.  Railroad  Co.,  49  Barb.  (N.  Y.) 
529;  Honegsberger  v.  Railroad  Co.,  2  Abb.  Dec.  (N.  Y.)  378;  Fitzgerald  v. 
Railway  Co.,  29  Minn.  336,  13  N.  W.  168;  Gilligan  v.  Railroad  Co.,  1  E.  D. 
Smith  (X.  Y.)  453;  Chicago  &  G.  E.  Ry.  Co.  v.  Harney,  28  Ind.  28;  St.  Louis 
&  S.  F.  Ry.  Co.  v.  Christian,  8  Tex.  Civ.  App.  246,  27  S.  W.  932.  Per  contra, 
Ihl  v.  Railroad  Co.,  47  N.  Y.  317. 

s  In  Kay  v.  Railroad  Co.,  65  Pa.  St.  277,  Agnew,  J.,  says:  "But  here  a 
mother  toiling  for  daily  bread,  and  having  done  the  best  she  could,  in  the 
midst  of  her  necessary  employment,  loses  sight  of  her  child  for  an  instant, 
and  it  strays  upon  the  track,  with  no  means  to  provide  a  servant  for  her 
child.  Why  should  the  necessities  of  her  position  in  life  attach  to  the  child, 
and  cover  it  with  blame?  When  injured  by  positive  negligence,  why  should 
it  be  without  redress?"  Philadelphia  &  R.  R.  Co.  v.  Long,  75  Pa.  St.  257; 
Pittsburg,  A.  &  M.  Ry.  Co.  v.  Pearson,  72  Pa.  St.  169;  Isabel  v.  Railroad  Co., 
60  Mo.  475;  Frick  v.  Railway  Co.,  75  Mo.  542;  O'Flaherty  v.  Railroad  Co.,  45 
Mo.  70;  Walters  v.  Railroad  Co.,  41  Iowa,  71;  Hoppe  v.  Railway  Co.,  61  WTis. 
357,  21  N.  W.  227;  Hewitt  v.  Railway  Co.,  167  Mass.  483,  46  N.  E.  106. 

4  McKenna  v.  Bedstead  Co.,  12  Misc.  Rep.  485,  33  N.  Y.  Supp.  684,  where  a 
child  two  years  old  ran  into  the  street  without  the  knowledge  of  the  mother, 
who  was  engaged  in  her  household  duties;  and  in  Hedin  v.  Railway  Co.,  26 
Or.  155,  37  Pac.  540,  where  a  child  three  years  old  was  sent  out  to  play  un- 
der the  care  of  a  nine  year  old  brother,  and  was  injured  while  crossing  the 
street  alone, — the  question  of  the  contributory  negligence  of  the  parent  was 
held  properly  submitted  to  the  jury.  See,  also,  cases  cited  in  section  27,  note 
3,  supra.  Gunn  v.  Railroad  Co.,  37  W.  Va.  421,  16  S.  E.  628;  Alabama  G.  S. 
R.  Co.  v.  Dobbs,  101  Ala.  219,  12  South.  770;  Weitzman  v.  Railroad  Co.,  33 
App.  Div.  585,  53  N.  Y.  Supp.  905;  Wise  v.  Morgan  (Tenn.  Sup.)  48  S.  W.  971; 
Trow  v.  Thomas,  70  Vt  580,  41  Atl.  652;  Ploof  v.  Traction  Co.,  70  Vt.  509,  41 
Atl.  1017. 

s  The  causal  connection  between  plaintiff's  negligence  and  the  injury  must 
always  be  shown.  See  ante,  section  8,  note  1,  and  cases  cited. 


64:  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 

low  a  child  to  go  unattended  on  the  street  is  not  negligence  per  se,* 
and  the  test  of  conduct  would  seem  to  be  whether  the  parent  took  that 
degree  of  care  of  his  child  which  a  reasonably  prudent  parent  of 
the  same  class  and  means  would  ordinarily  use  in  similar  circum- 
stances.7 

Negligence  of  child. 

In  applying  the  rules  of  contributory  negligence  to  the  conduct  of 
very  small  children,  a  problem  full  of  difficulties  is  presented.  To  re- 
quire of  a  mere  infant  any  degree  of  judgment  or  discretion  in  avoid- 
ing danger  is  manifestly  absurd;  and,  on  the  other  hand,  to  hold  a 
third  person  solely  responsible  for  an  injury  to  which  the  negligence 
of  the  parent  has  contributed  at  least  equally  with  his  own,  is  an  ap- 
parent injustice.  Yet  decisions  are  not  lacking  where  theTmerest  babies 
have  been  held,  in  law,  bound)  to  exercise  the  same' judgment  and  care 
in  avoiding  danger  which  would  be  required  of  an  adult;  and  the  ex- 
treme doctrine  of  imputed  negligence,  first  enunciated  in  the  cele- 
brated case  of  Hartfield  v.  Roper,8  is  to-day  followed  in  many  of  our 
state  courts,  although  its  rigor  has  been  somewhat  modified.  The 
theory  of  this  case  is  concisely  stated  by  Mason,  J.,  in  the  later  case 
of  Mangam  v.  Brooklyn  R.  Co. : 9  "An  infant,  in  its  first  years,  is 
not  sui  juris.  It  belongs  to  another,  to  whom,  discretion  in  the  care 
of  its  person  is  exclusively  confided.  The  custody  of  the  infant  of 
tender  years  is  confided  by  law  to  its  parents,  or  those  standing  in 
loco  parentis,  and,  not  having  that  discretion  necessary  for  personal 
protection,  the  parent  is  held,  in  law,  to  exercise  it  for  him,  and  in 
cases  of  personal  injuries  received  from  the  negligence  of  others  the 
law  imputes  to  the  infant  the  negligence  of  the  parents.  The  infant 

e  Riley  v.  Transit  Co.,  10  Utah,  428,  37  Pac.  681;  McVee  v.  City  of  Water- 
town,  92  Hun,  306,  36  X.  Y.  Supp.  870;  Bergen  County  Traction  Co.  v.  Heit- 
man's  Adm'r  (N.  J.  Err.  &  App.)  40  Atl.  661;  Ehrmann  v.  Railroad  Co.,  23 
App.  Div.  21,  48  N.  Y.  Supp.  379;  Karahuta  v.  Traction  Co.,  6  Pa.  Super.  Ct. 
319. 

'  Philadelphia  &  R.  R.  Co.  v.  Long,  75  Pa.  St.  257;  Ihl  v.  Railroad  Co.,  47  X. 
Y.  317;  Chicago  &  A.  R.  Co.  v.  Gregory,  58  111.  226;  Karr  v.  Parks.  40  Cal. 
188;  Metcalfe  v.  Railway  Co.,  12  App.  Div.  147,  42  N.  Y.  Supp.  661;  Gunn  v. 
Railroad  Co.,  42  W.  Va,  676,  26  S.  E.  546;  Fox  v.  Railway  Co.,  118  Cal.  55,  50 
Pac.  25;  McNeil  v.  Ice  Co.  (Mass.)  54  N.  E.  257. 

s  21  Wend.  (N.  Y.)  615. 

»38  X.  Y.  455. 


§    28)  IMPUTED    NEGLIGENCE.  65 

being  non  sui  juris,  and  having  a  keeper,  in  law,  to  whose  discretion, 
in  the  care  of  his  person,  he  is  confided,  his  acts,  as  regards  third  per- 
sons, must  be  held,  in  law,  the  act  of  the  infant;  his  negligence  the 
negligence  of  the  infant."  But  even  in  states  where  the  decision  is 
still  followed  the  severity  of  the  rule  has  been  greatly  softened  in 
later  decisions  by  insisting  that  the  conduct  of  the  child  must  first 
be  shown  to  be  a  proximate  cause  of  his  injury,  and  by  holding,  where 
this  does  not  appear,  that  the  negligence  of  the  parent  in  permitting, 
him  to  be  on  the  street  was  remote  and  immaterial.10 


SAME— DEGREE  OF  CARE  REQUIRED  OF  A  CHILD. 

28.  The  degree  of  care  required  of  a  child  is  that  reason- 
ably to  be  expected  of  children  of  a  like  age  in 
similar  circumstances;  but  in  their  earliest  years 
they  are  incapable  of  discretion,  and  personal  neg- 
ligence cannot  then  be  predicated  of  their  conduct. 

At  what  exact  age  a  child  ceases  to  be  non  sui  juris,  and  acquires 
a  capacity  for  any  degree  of  thoughtful  action,  is  not  determined,  but 
it  is  now  generally  held  that  in  their  earliest  years  they  are  entirely 
without  such  capacity,  and  consequently  incapable  of  legal  negli- 
gence.1 Unless,  however,  the  child  is  so  young  as  to  clearly  preclude 

10  Lynch  v.  Smith,  104  Mass.  52;  and  in  this  case  the  court  further  said 
that,  even  if  his  parents  were  negligent  in  permitting  him,  a  child  4  years- 
and  7  months  old,  to  cross  the  street  alone,  their  negligence  was  not  contribu- 
tory, and  he  may  recover,  if  in  crossing  he  did  no  act  which  prudence  would 
have  forbidden,  and  omitted  no  act  which  prudence  would  have  dictated,  what- 
ever was  his  physical  or  intellectual  capacity.  See,  also,  cases  cited  in  sec- 
tion 27,  notes  4  and  5,  supra. 

§  28.  i  A  child  under  three  years  of  age  is  prima  facie  incapable  of  negligence, 
Barnes  v.  Railroad  Co.,  47  La.  Ann.  1218,  17  South.  782.  In  North  Penn- 
sylvania R.  Co.  v.  Mahoney,  57  Pa.  St.  187,  it  was  broadly  held  that  contribu- 
tory negligence  was  impossible  in  any  child  of  "tender  years."  Presurnptioa 
as  to  age  of  a  "little  child,"  Bottoms  v.  Railroad  Co.,  114  X.  C.  699,  19  S.  E.  730;. 
Wiley  v.  Railroad  Co.,  76  Hun,  29,  27  N.  Y.  Supp.  722;  Gunn  v.  Rail- 
road Co.,  42  W.  Va.  676,  26  S.  E.  546;  Missouri  Pac.  Ry.  Co.  v.  Prewitt  (Kan. 
App.)  51  Pac.  923;  South  Covington  &  C.  St  Ry.  Co.  v.  Herrklotz  (Ky.)  47  S. 
W.  265;  Rice  v.  Railroad  Co.  (La.)  24  South.  791;  Wise  v.  Morgan  (Teun.  Sup.> 
48  S.  W.  971;  McToy  v.  Oakes,  91  Wis.  214,  64  N.  W.  748;  Merritt  v.  Hjpen- 
BAR.NEG.— 5 


66  CONTRr  UTORY  NEGLIGENCE.  (Ch.  2 

the  supposition  of  any  degree  of  rational  conduct,  it  is  generally  left 
to  the  jury  to  determine  the  measure  of  care  that  he  should  use.2 
But  when  he  is  either  so  old  or  so  young  as  to  leave  no  room  for 
doubt,  it  is  the  duty  of  the  court  to  rule  as  to  his  capacity;3  and 
courts  have  varyingly  extended  the  period  in  which,  as  a  matter  of 
law,  a  child  is  non  sui  juris,  from  the  time  of  his  birth  to  the  age  of 
7  years,4  while  in  Indiana  it  has  even  been  held  that  at  8  years  his 
•capacity  is  a  question  for  the  jury.6 

stal,  25  Can.  Sup.  CL  150;  Barnes  v.  Railroad  Co.,  47  La.  Ann.  1218,  17  South. 
782. 

2  Western  &  A.  R.  Co.  v.  Young,  81  Ga.  397,  7  S.  E.  912;  McCarthy  v.  Rail- 
way Co.,  92  Mo.  536,  4  S.  W.  516;  Silberstein  v.  Railroad  Co.,  52  Hun,  611, 
4  X.  Y.  Supp.  843;  Bridger  v.  Railroad  Co.,  25  S.  C.  24;  Wilson  v.  Railroad 
Co.,  132  Pa,  St.  27,  18  Atl.  1087;  StrawbrJdge  v.  Bradford,  128  Pa.  St.  200, 
18  Atl.  34<>;  Dorman  v.  Railroad  Co.  (City  Ct.  Brook.)  5  X.  Y.  Supp.  769;  Chi- 
cago City  Ry.  Co.  v.  Wilcox,  138  111.  370,  27  X.  E.  899;  Stone  v.  Railroad  Co., 
115  X.  Y.  104,  21  X.  E.  712;  Connolly  v.  Ice  Co.,  114  X.  Y.  104,  21  X.  E.  101; 
Whalen  v.  Railway  Co.,  75  Wis.  654,  44  X.  W.  849;  Dealey  v.  Muller,  149  Mass. 
432,  21  X.  E.  763;  Consolidated  Traction  Co.  v.  Scott,  58  X.  J.  Law,  682,  34 
Atl.  1094;  Wise  v.  Morgan  (Tenn.  Sup.)  48  S.  W.  971;  Penny  v.  Railway  Co., 
7  App.  Div.  595,  40  X.  Y.  Supp.  172. 

sxagle  v.  Railroad  Co.,  88  Pa.  St.  35,  where  Paxson,  J.,  said:  "At  what 
age,  then,  must  an  infant's  responsibility  for  negligence  be  presumed  to  com- 
mence? This  question  cannot  be  answered  by  referring  it  to  the  jury.  That 
would  furnish  us  with  no  rule  whatever.  It  would  give  us  a  mere  shifting 
standard,  affected  by  the  sympathies  or  prejudices  of  the  jury  in  each  par- 
ticular case.  One  jury  would  fix  the  period  of  responsibility  at  14,  and  an- 
other at  20  or  21.  This  is  not  a  question  of  fact  for  the  jury;  it  is  a  ques- 
tion of  law  for  the  court."  Tucker  v.  Railroad  Co.,  124  X.  Y.  308,  26  X.  E. 
916. 

*  Toledo,  W.  &  W.  Ry.  Co.  v.  Grable,  88  111.  441;    Callahan  v.  Bean,  9  Allen 
(Mass.)  401;    Evausville  &  C.  R.  Co.  v.  Wolf,  59  Ind.  89;    Jones  v.  Railroad 
Co.,  36  Hun    (X.  Y.)  115;    Ryan  v.  Railroad  Co.,  37  Hun  (X.  Y.)  186;    Kreig  v. 
Wells,  1  E.  D.  Smith  (X.  Y.)  74;    Central  Trust  Co.  of  Xew  York  v.  Railway 
€o.,  31  Fed.  246;    Moynihan  v.  Whidden,  143  Mass.  287,  9  X.  E.  645;    O'Fla- 
herty  v.  Railroad  Co.,  45  Mo.  70;  Mangaru  v.  Railroad  Co.,  38  X.  Y.  455;    Mas- 
check  v.  Railroad  Co.,  3  Mo.  App.  600;    Pittsburg,  A.  &  M.  Pass.  Ry.  Co.  v. 
Caldwell,  74  Pa.  St.  421;   Jeffersonville,  M.  &  I.  R.  Co.  v.  Bowen,  40  Ind.  54.",; 
McGarry  v.  Loomis,  63  X.  Y.  104;    Lehman  v.  City  of  Brooklyn,  29  Barb.  (X. 
Y.)  234;    Gavin  v.  City  of  Chicago,  97  111.  66;    Bay  Shore  R.  Co.  v.  Han-is.  <;7 
Ala.  6;    Morgan  v.  Bridge  Co.,  5  Dill.  96,  Fed.  Cas.  Xo.  9.802;    Frick  v.  Rail- 

*  Louisville,  X.  A.  &  C.  Ry.  Co.  v.  Sears,  11  Ind.  App.  654,  3S  X.  E.  837. 


§    28)  IMPUTED    NEGLIGENCE.  67 

When  it  has  been  decided  that  the  infant  was  possessed  of  some 
capacity  to  avoid  danger,  the  degree  of  care  he  should  be  required  to 
exercise  in  the  circumstances  of  the  particular  case  is  always  a  ques- 
tion for  the  jury,6  under  proper  instructions  to  the  effect  that  his  con- 
duct should  be  guided  by  such  prudence  and  discretion  only  as  is  rea- 
sonably to  be  expected  of  children  of  the  same  age  in  similar  circum- 
stances.7 Nor  does  this  apparent  curtailing  of  the  law  of  contribu- 

way  Co.,  75  Mo.  542;  City  of  Chicago  v.  Starr,  42  111.  174;  Meeks  v.  Railroad 
€o.,  52  Cal.  602;  Gillespie  v.  McGowan,  100  Pa.  St  144;  Maekey  v.  City  of 
Vicksburg,  64  Miss.  777,  2  South.  178;  Westbrook  v.  Railroad  Co.,  G6  Miss. 
560,  6  South.  321;  City  of  Vicksburg  v.  McLain,  67  Miss.  4,  6  South.  774; 
City  of  Pekin  v.  McMahon,  154  111.  141,  39  N.  E.  484;  Kentucky  Hotel  Co.  v. 
Camp,  97  Ky.  424,  30  S.  W.  1010;  Pierce  v.  Conners,  20  Colo.  178,  37  Pac.  721; 
City  of  Pekin  v.  McMahon,  154  111.  141,  39  X.  E.  484,  where  it  was  held  that  a 
child  of  more  than  7  years  ceases  to  be  non  sui  juris. 

e  Mitchell  v.  Motor  Co.,  9  Wash.  120,  37  Pac.  341.  See,  also,  cases  cited 
in  section  28,  note  2,  supra;  Geibel  v.  Elwell,  19  App.  Div.  285,  46  N.  Y.  Supp. 
76;  Price  v.  Water  Co..  58  Kan.  551,  50  Pac.  450;  Thompson  v.  Rapid-Transit 
Co.,  16  Utah,  281,  52  Pac.  92;  Walters  v.  Light  Co.  (Colo.  App.)  54  Pac. 
.960;  Biggs  v.  Barb-Wire  Co.  (Kan.  Sup.)  56  Pac.  4;  Atchison,  T.  &  S.  F.  R. 
Co.  v.  Roemer,  59  111.  App.  93;  Kite-hell  v.  Railroad  Co.,  6  App.  Div.  99,  39  X. 
Y.  Supp.  741;  Schmidt  v.  Railway  Co.,  23  WTis.  186;  Kerr  v.  Forgue,  54  111. 
482;  Philadelphia  &  R.  R.  Co.  v.  Spearen,  47  Pa.  St.  300;  Boland  v.  Railroa(J 
Co.,  36  Mo.  484;  Oakland  Ry.  Co.  v.  Fielding,  48  Pa.  St.  320;  Philadelphia 
City  Pass.  R.  Co.  v.  Hassard,  75  Pa.  St.  367;  Manly  v.  Railroad  Co.,  74  X.  C. 
r,.".-;  Mobile  &  M.  R.  Co.  v.  Crenshaw,  65  Ala.  566;  Casey  v.  Railroad  Co.,  6 
Abb.  X.  C.  (X.  Y.)  104;  Byrne  v.  Railroad  Co.,  83  N.  Y.  620;  Galveston,  H.  & 
H.  Ry.  Co.  v.  Moore,  59  Tex.  64;  Houston  &  T.  C.  Ry.  Co.  v.  Simpson,  60 
Tex.  103;  Meibus  v.  Dodge,  38  Wis.  300;  Government  St.  R.  Co.  v.  Hanlon, 
53  Ala.  70;  Baltimore  City  Pass.  R.  Co.  v.  McDonnell,  43  Md.  534;  McMillan 
v.  Railroad  Co.,  46  Iowa,  231;  East  Saginaw  City  Ry.  Co.  v.  Bohn,  27  Mich. 
503. 

T  Springfield  Consol.  Ry.  Co.  v.  Welsch,  155  111.  511,  40  X.  E.  1034;  Wabash 
R.  Co.  v.  Jones,  53  111.  App.  125;  Hayes  v.  Xorcross,  162  Mass.  546,  39  X.  E. 
282.  General  rule,  Kentucky  Hotel  Co.  v.  Camp,  97  Ky.  424,  30  S.  W.  1010; 
Pierce  v.  Conners,  20  Colo.  178,  37  Pac.  721;  San  Antonio  &  A.  P.  Ry.  Co.  v. 
Jazo  (Tex.  Civ.  App.)  25  S.  W.  712;  Texas  &  P.  Ry.  Co.  v.  Mother,  5  Tex.  Civ. 
App.  87,  24  S.  W.  79;  Chicago,  B.  &  Q.  R.  Co.  v.  Grablin,  38  Xeb.  90,  56  X.  WT. 
796;  Wiswell  v.  Doyle,  160  Mass.  42,  35  N.  E.  107;  Central  Railroad  &  Bank- 
ing Co.  v.  Phillips,  91  Ga.  526,  17  S.  E.  952;  Brown  v.  City  of  Syracuse,  77 
Hun,  411,  28  X.  Y.  Supp.  792;  Omaha  &  R.  V.  Ry.  Co.  v.  Morgan  (Xeb.)  59  X. 
W.  81;  Mitchell  v.  Motor  Co.,  9  Wash.  120,  37  Pac.  341;  Washington  &  G.  Ry. 
€o.  v.  Gladrnon,  15  Wall.  401;  Sioux  City  &  P.  R.  Co.  v.  Stout,  17  Wall.  657;  Me- 


68  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 

tory  negligence  work  the  injustice  and  hardship  on  the  defendant  that 
is  sometimes  claimed.  In  contending  against  this  alleged  limitation 
of  the  doctrine,  it  would  seem  that  the  obligation  resting  on  the  plain- 
tiff to  establish  a  positive  breach  of  duty  by  the  defendant  is  not  in- 
frequently overlooked.  So  notable  a  jurist  as  Alderson,  B.,  in  an 
opinion  involving  this  question,  says:  "The  negligence,  in  truth,  i& 
attributable  to  the  parent  who  permits  the  child  to  be  at  large.  It 
seems  strange  that  a  person  who  rides  in  his  carriage  without  a  serv- 
ant, if  a  child  receives  an  injury  by  getting  up  behind  for  the  purpose 
of  having  a  ride,  should  be  liable  for  the  injury."  8  It  is  evident  that 
in  the  case  supposed  there  is  damnum  absque  injuria.  If  the  driver 
of  a  carriage,  conducting  himself  lawfully,  and  being  guilty  of  no 
breach  of  duty,  becomes  the  unwitting  instrument  of  harm  to  another 
person,  whether  infant  or  adult,  he  is  without  legal  fault,  and  no- 
action  can  be  founded  on  his  conduct.  Thus,  in  a  recent  case,  de- 
fendant's grocery  wagon  is  being  driven  along  a  well-traveled  street 
at  a  speed  of  about  five  or  six  miles  an  hour,  with  ordinary  care,  when 
a  boy  of  5£  years,  with  his  mother's  permission,  starts  to  cross  the 
street.  While  the  wagon  is  but  a  few  feet  distant,  and  close  to  the 
curb,  he  darts  quickly  in  front  of  it,  and  is  run  over  in  broad  daylight. 

Govern  v.  Railroad  Co.,  67  N.  Y.  417;  Ihl  v.  Railroad  Co.,  47  N.  Y.  317;  Rauch 
v.  Lloyd,  31  Pa,  St.  358;  Gray  v.  Scott,  66  Pa.  St.  345;  Robinson  v.  Cone,  22 
Vt.  213;  Lynch  v.  Smith,  104  Mass.  52;  O'Connor  v.  Railroad  Co.,  135  Mass. 
352;  Birge  v.  Gardner,  19  Conn.  507;  Bronson  v.  Town  of  Southbury,  37  Conn. 
199;  Baltimore  &  O.  R.  Co.  v.  State,  30  Md.  47;  Galveston,  H.  &  S.  A.  Ry_ 
Oo.  v.  dark  (Tex.  Civ.  App.)  51  S.  W.  276;  Kinchlow  v.  Elevator  Co.,  57  Kan. 
374,  46  Pac.  703;  Frauenthal  v.  Gaslight  Co.,  67  Mo.  App.  1;  Weldon  v.  Rail- 
road Co.  (Del.  Sup.)  43  Atl.  156;  Baltimore  &  P.  R.  Co.  v.  Webster,  6  App. 
D.  C.  182;  Calumet  Electric  St.  Ry.  Co.  v.  Van  Pelt,  68  111.  App.  582;  Texas 
&  P.  Ry.  Co.  v.  Phillips,  91  Tex.  278,  42  S.  W.  852;  Smith  v.  Railway  Co.,  90 
Fed.  783;  Western  &  A.  R.  Co.  v.  Rogers,  104  Ga.  224,  30  S.  E.  804;  Felton  v. 
Aubrey,  20  C.  C.  A.  436,  74  Fed.  350;  Georgia,  C.  &  N.  Ry.  Oo.  v.  Watkins,  97 
Ga.  381,  24  S.  E.  34;  Norton  v.  Volzke,  158  111.  402,  41  N.  E.  1085;  Baltimore 
&  O.  S.  W.  Ry.  Co.  v.  Then,  159  111.  535,  42  N.  E.  971;  Van  Natta  v.  Power  Co.,. 
133  Mo.  13,  34  S.  W.  505;  Cincinnati  St.  Ry.  Co.  v.  Wright,  54  Ohio  St.  181, 
43  N.  E.  688;  Kucera  v.  Lumber  Co.,  91  Wis.  637,  65  N.  W.  374;  Springfield 
Consol.  Ry.  Co.  v.  Welsch,  155  111.  511,  40  N.  E.  1034;  Payne  v.  Railroad  Co.,. 
129  Mo.  405,  31  S.  W.  885;  Lynch  v.  Nurdin,  1  Q.  B.  29. 
s  Lygo  v.  Newbold,  9  Exch.  302. 


§    28)  IMPUTED    NEGLIGENCE.  69 

Even  at  so  young  an  age.  he  was  held  in  fault,  and  not  entitled  to  re- 
cover.9 

^Machines  and  Places  Attractive  to  Children. 

But  where  dangerous  instrumentalities,  in  their  nature  attractive 
to  children,  are  left  in  an  exposed  and  accessible  place  where  children 
are  likely  to  be,  the  law  is  well  settled  that  the  proprietor  cannot 
shield  himself  in  an  action  for  injuries  caused  thereby  to  an  infant  by 
showing  that  the  machine  or  article  was  not  in  itself  dangerous,  and 
would  have  done  no  harm  if  the  plaintiff  had  not  meddled  or  tampered 
with  it.  The  turntable  cases  furnish  the  most  familiar  illustration 
of  this  principle.10  In  Keffe  v.  Milwaukee  &  St.  P.  By.  Co.,11  which 
is  a  type  of  this  class  of  cases,  the  defendant  left  its  turntable,  situ- 
ated in  a  public  place  near  the  home  of  plaintiff,  unfastened  and  un- 
guarded. It  revolved  easily,  and  could  be  moved  even  by  small  chil- 
dren. Plaintiff,  a  child  of  7  years,  was  injured  while  playing  upon 
and  revolving  it,  and  it  was  held  that  he  could  recover  against  the 
railroad  company,  the  court  citing  with  approval  the  rule  established 
in  Sweeny  v.  Old  Colony  &  N.  R.  Co.12  that  an  owner  or  occupant  of 
premises  is  bound  to  keep  them  in  a  safe  and  suitable  condition  for 
those  who  come  upon  and  pass  over  them  using  due  care,  if  he  has  held 
out  any  inducement,  invitation,  or  allurement,  either  express  or  im- 
plied, by  which  they  have  been  led  to  enter  thereon.  The  court  fur- 
ther observes  that  what  an  express  invitation  would  be  to  an  adult 
the  temptation  of  an  attractive  plaything  is  to  a  child  of  tender  years. 

»  Hayes  v.  Xorcross,  162  Mass.  546,  39  N.  E.  282. 

10  Railroad  Co.  v.  Stout,  17  Wall.  657;    Keffe  v.  Railroad  Co.,  21  Minn.  207; 
Kerr  v.  Forgue,  54  111.  482;    Xagel  v.  Railway  Co.,  75  Mo.  653;    Evansich  v.  ' 
Railway  Co.,  57  Tex.  126;    Kansas  Cent.  Ry.  Oo.  v.  Fitzsimmons,  22  Kan.  686; 
Koons  v.  Railroad  Co.,  65  Mo.  592;    Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Styron,  66 
Tex.  421,  1  S.  W.  161;    Bridger  v.  Railroad  Co.,  27  S.  C.  456,  3  S.  E.  860;    Fer- 
guson v.  Railway  Co.,  77  Ga.  102;    Gulf,  C.  &  S.  F.  Ry.  Co.  v.  McWhirter,  77 
Tex.  356,  14  S.  W.  20.    Turntables:    Carson  v.  Railway  Co.,  96  Iowa,  583,  65 
N.  W.  831;    Merryman  v.  Railway  Co.,  85  Iowa,  634,  52  N.  W.  545.    St.  Louis, 
V.  &  T.  R.  Co.  v.  Bell,  SI  111.  76,  does  not  clearly  follow  the  rule  laid  down 
in  the  above  decisions,  but  in  this  case  the  isolation  of  the  position  of  the 
turntable  was  material  in  determining  defendant's  negligence.    Walsh  v.  Rail- 
road Co.,  145  X.  Y.  301,  39  X.  E.  1068,  a  recent  Xew  York  case,  is  opposed  to 
general  rule  as  above  laid  down. 

11  21  Minn.  207. 

12  10  Allen  (.Mass.)  368. 


70  CONTRIBUTORY    NEGLIGENCE.  (Ch.  2 

These  cases  in  no  way  disturb  the  doctrine  of  contributory  negligence, 
but  mark  a  consistent  and  humane  adaptation  of  the  well-settled  law. 
Curiosity,  the  love  of  investigation,  is  as  strong  in  children  as  in 
adults,  but  is  not,  in  them,  coupled  with  mature  discretion  and  judg- 
ment; and  if,  in  gratifying  this  curiosity,  using  such  intelligence  and 
care  as^their  years  may  furnish,  they  are  injured  by  an  unfastened, 
unguarded,  and  dangerous  machine,  their  conduct  is  not  negligent, 
and  cannot  prevent  their  recovery.18  The  distinction  between  the 
conduct  of  children  in  these  cases  in  going  upon  and  "meddling" 
with  the  property  of  defendant  and  that  of  a  voluntary  trespasser  is 
this:  That  the  children  are  attracted  and  induced  to  go  upon  de- 
fendant's property  by  the  defendant's  own  conduct,  the  danger  being 
hidden,  and  in  the  nature  of  a  trap.14 

Same — Negligence  of  the  Parent  not  Imputed  to  the  Child. 

In  an  action  for  the  benefit  of  the  child  for  injuries  negligently 
caused  by  a  stranger,  the  negligence  of  the  parent  or  custodian  is  not 
imputed  to  the  infant,  except  in  California,15  Indiana,16  Kansas,17 
Maine,18  Maryland,19  Massachusetts,20  Minnesota,21  and  New  York.22 

13  The  English  cases  on  this  proposition  are  conflicting,  and  leave  the  mat- 
ter in  doubt  in  their  courts.    Lynch  v.  Nurdin,  1  Q.  B.  29;   Hughes  v.  Macfie,  2 
Hurl.  &  C.  744;  Mangan  v.  Atterton,  L.  R.  1  Exch.  230. 

14  Keffe  v.  Railway  Co.,  21  Minn.  207,  210. 

IB  Karr  v.  Parks,  40  Cal.  188;   Meeks  v.  Railroad  Co.,  52  Cal.  602. 

is  Pittsburgh,  Ft.  W.  &  C.  Ry.  Co.  v.  Vining's  Adrn'r,  27  Ind.  513;  although 
the  negligence  of  his  custodians  cannot  be  imputed  to  a  child  (eight  years). 
having  capacity  to  exercise  discretion  in  his  own  behalf,  Louisville,  N.  A.  & 
C.  Ry.  Co.  v.  Sears,  11  Ind.  App.  654,  38  N.  E.  837;  City  of  Evansville  v. 
Senhenn,  151  Ind.  42,  47  N.  E.  634;  MeXamara  v.  Beck  (Ind.  App.)  52  N.  E. 
707;  City  of  Jeffersonville  v.  McHenry  (Ind.  App.)  53  N.  E.  183. 

IT  Missouri,  K.  &  T.  Ry.  Co.  v.  Shockman,  59  Kan.  774,  52  Pac.  446;  Union 
Pac.  Ry.  Co.  v.  Young,  57  Kan.  168,  45  Pac.  •  580;  Atchison,  T.  &  S.  F.  R. 
Co.  v.  Smith,  28  Kan.  541;  Smith  v.  Railroad  Co.,  25  Kan.  738. 

is  Leslie  v.  City  of  Lewiston,  62  Me.  468;  Brown  v.  Railway  Co.,  58  Me.  384. 

is  McMahon  v.  Railway  Co.,  39  Md.  439. 

20  Casey  v.  Smith,  152  Mass.  294,  25  N.  E.  734;    Lynch  v.  Smith,  104  Mass. 
52;    Gibbons  v.  Williams,  135  Mass,  333. 

21  Fitzgerald  v.  Railway  Co.,  29  Minn.  336,  13  N.  W.  168. 

22  Hartfield  v.  Roper,  21  Wend.  615;    McGarry  v.  Loomis,  63  X.  Y.  104;    Low- 
ery  v.  Ice  Co.,  26  Misc.  Rep.  163,  55  N.  Y.  Supp.  707.     The  imputation  of  the 
parents'  negligence  is  denied  in  the  following  states:     ALABAMA.  Government 
St.  R.  Co.  v.  Hanlon,  53  Ala.  70;  ARKANSAS,  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 


§    28)  IMPUTED    NEGLIGENCE.  71 

In  the  states  named,  the  doctrine  of  Hartfield  v.  Koper,23  is  followed 
with  varying  consistency,  but  with  a  tendency  to  somewhat  abate  its 
harshness.  In  Maryland  it  has  been  held  that  if,  by  the  exercise  of 
ordinary  care,  the  defendant  could  have  avoided  the  injury,  the 
neglect  of  the  parents  will  not  prevent  recovery  by  a  child  non  sui 
juris; 24  also,  in  another  case,25  it  was  left  to  the  jury  to  determine 
whether  a  child  of  5  years  and  9  months  had  acted  with  the  degree 
of  care  and  caution  in  the  circumstances  which  might  reasonably  be 
expected  from  a  child  of  his  age  and  intelligence.  In  Massachusetts 
the  courts  have  so  reasonably  and  leniently  considered  the  conduct 
of  both  parent26  and  child27  in  determining  the  question  of  their 
contributory  negligence  as  to  materially  soften  the  rigor  of  the  rule. 

Rexroad,  26  S.  W.  1037;  CONNECTICUT,  Birge  v.  Gardner,  19  Conn.  506; 
GEORGIA,  Ferguson  v.  Railway  Co.,  77  Ga.  102;  Atlanta  &  C.  Air-Line  Ry. 
Co.  v.  Gravitt,  93  Ga.  300.  20  S.  E.  550;  ILLINOIS,  Chicago  City  Ry.  Co.  v. 
Wilcox,  138  111.  370,  27  N.  E.  899;  Louisville  &  St.  L.  Consol.  R.  Co.  v. 
Gobin,  52  111.  App.  565;  IOWA,  Wymore  v.  Mahaska  Co.,  78  Iowa,  396.  43 
N.  W.  264;  KENTUCKY,  South  Covington  &  C.  St.  Ry.  Co.  v.  Herrklotz,  47 
S.  W.  2G5;  LOUISIANA,  Westerfield  v.  Levis,  43  La,  Ann.  63,  9  South.  52; 
MICHIGAN,  Power  v.  Harlow.  57  Mich.  107,  23  N.  W.  606;  Shippy  v.  Vil- 
lage of  Au  Sable,  85  Mich.  280,  48  N.  W.  584;  MISSISSIPPI,  Westbrook  v. 
Railroad  Co.,  66  Miss.  560,  6  South.  321;  MISSOURI.  Winters  v.  Railway  Co., 
99  Mo.  509,  12  S.  W.  652;  NEBRASKA,  Huff  v.  Aines,  16  Neb.  139,  19  N.  W. 
023:  NEW  HAMPSHIRE,  Bisaillon  v.  Blood.  64  N.  H.  565,  15  Atl.  147; 
NEW  JERSEY,  Newman  v.  Railroad  Co.,  52  N.  J.  Law,  446,  19  Atl.  1102; 
NORTH  CAROLINA,  Bottoms  v.  Railroad  Co.,  114  N.  (J.  099,  19  S.  E.  730; 
OHIO,  Davis  v.  Guarnieri,  45  Ohio  St.  470,  15  N.  E.  350;  PENNSYLVANIA, 
North  Pennsylvania  R.  Co.  v.  Mahoney,  57  Pa.  St.  loV ;  Philadelphia  & 
R.  R.  Co.  v.  Long,  75  Pa.  St.  257;  TEXAS,  Gaiveston,  H.  &  H.  Ry. 
Co.  v.  Moore,  59  Tex.  64;  Texas  &  P.  Ry.  Co.  v.  Fletcher,  b  Tex.  Civ.  App. 
736,  26  S.  W.  446;  VERMONT.  Robinson  v.  Cone.  22  Vt.  2i3;  Ploof  v.  Traction 
Co.,  69  Vt.  509,  41  Atl.  1017;  VIRGINIA,  Norfolk  &  P.  R.  Co.  v.  Ormsby,  27 
Grat.  455;  Norfolk  &  W.  R.  Co.  v.  Groseclose's  Adm'r,  88  Va,  267,  13  S.  E. 
4.-,4:  WASHINGTON,  Roth  v.  Depot  Co.,  13  Wash.  525,  43  Pac.  641;  WEST 
VIRGINIA,  Dicken  v.  Coal  Co.,  41  W.  Va.  511.  23  S.  E.  582. 

23  21  Wend.  (N.  Y.)  615. 

24  Baltimore  City  Pass.  R.  Co.  v.  McDonnell,  43  Md.  534. 

25  McMahon  v.  Railroad  Co.,  39  Md.  439. 

2c  Bliss  v.  South  Hadley.  145  Mass.  91,  13  N.  E.  352;    Marsland  v.  Murray, 
148  Mass.  91,  18  N.  E.  680;    Slattery  v.  O'Counell,  153  Mass.  94,  26  N.  E.  430; 

2-  Mnttey  v.  Machine  Co.,  140  Mass.  337,  4  X  E.  575;    Lynch  v.  Smith,  104 
Mass.  52, 


72  CONTRIBUTORY  NEGLIGENCE.  (Ch.  2 

Same — Limitation  of  the  New  York  Rule. 

As  the  so-called  "New  York  Rule,"  having  its  inception  in  Hartfleld 
v.  Roper,28  continues  to  hold  its  place  in  that  and  several  other  states, 
its  limitations  in  decided  cases  should  be  carefully  observed.  Re- 
stated, that  rule  holds  that  when  a  child,  too  young  to  be  sui  juris, 
fails  to  exercise  the  degree  of  care  to  be  expected  of  an  adult  in  simi- 
lar circumstances,  the  negligence  of  its  parents,  or  those  in  loco 
parentis,  is  imputed  to  it.  Although,  in  theory,  this  doctrine  applies 
whenever  a  child  is  negligently  exposed  to  harm  by  its  custodian,  in 
the  majority  of  actual  cases  where  it  has  been  enforced  very  young- 
children  have  been  allowed  to  run  abroad  and  wander  into  places  of 
danger  without  suitable  attendants.  Moreover,  it  may  be  fairly  said 
that  the  full  application  of  the  principle  is  now  restricted  to  cases 
where  the  child  is  subjected,  through  the  negligence  of  the  parent,  to 
such  a  degree  of  exposure  and  risk  as  an  adult  could  not  encounter 
voluntarily  without  being  guilty  of  contributory  negligence.  Thus, 
if  a  little  child  is  permitted  by  its  parent  to  cross  a  much-traveled 
street,  where  it  would  be  imprudent  for  an  adult  to  attempt  to  pass, 
he  cannot  recover  for  injuries  inflicted  by  the  negligent  driving  of  a 
carriage.  And  the  converse  of  this  proposition  is  equally  true.  If 
the  conduct  of  the  child  is  marked  by  no  act  or  omission  which  would 
indicate  a  lack  of  prudence  in  an  adult,  the  fact  that  his  parents  were 
grossly  negligent  in  allowing  him  to  be  unattended  on  the  street 
would  not  affect  his  right  to  recover  for  injuries  negligently  inflicted 
on  him  by  a  stranger.29  In  Ihl  v.  Forty-Second  St.  &  G.  S.  F.  R.  Co.30 
a  child  of  3  years  was  sent  across  defendant's  track,  unattended  ex- 
cept by  a  9  year  old  child,  and  was  struck  by  a  car  and  killed.  It  was 
held  by  the  appellate  court  that  this  was  not  per  se  such  negligence  as 
would  defeat  a  recovery.  If  the  deceased,  it  was  ruled,  exercised  due 
care,  and  the  injury  was  caused  solely  by  the  negligence  of  defend- 
ant's driver,  the  defendant  was  liable,  without  regard  to  the  question 

Wiswell  v.  Doyle,  160  Mass.  42,  35  N.  E.  107;  Creed  v.  Kendall,  156  Mass.  291, 
31  N.  E.  6;  Mulligan  v.  Curtis,  100  Mass.  512;  Lynch  v.  Smith,  104  Mass.  52. 

28  21  Wend.  615. 

aoMcGarry  v.  Loomis,  63  X.  Y.  104;  Ihl  v.  Railroad  Co.,  47  X.  Y.  317; 
O'Brien  v.  McGlinchy,  68  Me.  552. 

«o  47  N.  Y.  317. 


§    29  IMPUTED    NEGLIGENCE.  73 

whether  it  was  negligence  in  the  parents  to  let  the  child  go  with  so 
young  an  attendant. 


SAME— LUNATICS  AND  IDIOTS. 

29.  In  general,  the  contributory  negligence  of  lunatics  and 
others  non  compos  mentis  is  determined  by  the 
same  principles  that  are  applied  to  the  conduct  of 
children. 

In  considering  the  conduct  of  lunatics  and  their  custodians,  as 
affecting  their  right  to  recover  for  injuries  negligently  inflicted  on 
them  by  strangers,  the  same  general  principles  apply  as  in  the  case  of 
•children.1  And  as  the  degree  of  care  required  of  children  varies  ac- 
cording to  their  age,  so  more  prudence  is  expected  of  one  whose 
mind  is  only  slightly  clouded  than  of  one  who  is  entirely  bereft  of  rea- 
son. As  the  mental  condition  of  the  lunatic  is  not  ordinarily  dis- 
covered by  his  appearance,  the  public  is  not  put  on  its  guard  to  the 
same  extent  as  with  children,  whose  stature  and  movements  at  once 
proclaim  their  youth  and  immature  faculties.2  For  this  reason  the 
question  of  knowledge  of  the  mental  condition  of  the  idiot  is  often 
important  in  determining  the  negligence  of  the  defendant.  Thus, 
one  whose  mind  is  merely  dull,  and  who  is  capable  of  earning  his 
living,  there  being  no  apparent  necessity  of  putting  him  under  the 

§  29.  i  Willetts  v.  Railroad  Co.,  14  Barb.  (N.  Y.)  585;  Worthington  v.  Men- 
eer.  96  Ala.  310,  11  South.  72;  Johnson  v.  Railway  Co.,  67  Minn.  260,  69  X. 
W.  900;  Platte  &  D.  Canal  &  Milling  Co.  v.  Dowell,  17  Colo.  376,  30  Pac.  68; 
Lynch  v.  Railway  Co.,  112  Mo.  420,  20  S.  W.  642. 

2  East  Saginaw  City  Ry.  Co.  v.  Bohn,  27  Mich.  503;  Pittsburg,  A.  &  M.  P. 
liy.  Co.  v.  Caldwell,  74  Pa.  St.  421;  Brennan  v.  Railroad  Co.,  45  Conn.  284; 
Walters  v.  Railroad  Co.,  41  Iowa,  71,  76.  In  Robinson  v.  Cone,  22  Vt.  213.  at 
page  224,  Redfleld,  J.,  says:  "And  we  are  satisfied  that  although  a  child  or 
idiot  or  lunatic  may,  to  some  extent,  have  escaped  into  the  highway  through 
the  fault  or  negligence  of  his  keeper,  and  so  be  improperly  there,  yet,  if  he 
Js  hurt  by  the  negligence  of  the  defendant,  he  is  not  precluded  from  his  redress. 
If  one  know  that  such  a  person  is  in  the  highway,  or  on  a  railway,  he  is 
bound  to  a  proportionate  degree  of  watchfulness;  and  what  would  be  but 
•ordinary  neglect  in  regard  to  one  whom  the  defendant  supposed  a  person  of 
full  age  and  capacity  would  be  gross  neglect  as  to  a  child,  or  one  known  to 
•be  incapable  of  escaping  danger." 


74  CONTRIBUTORY  NEGLIGENCE.  (Ch.  2 

protection  of  a  guardian,  is  chargeable  with  the  same  degree  of  care 
for  his  personal  safety  as  are  others  of  brighter  intellect;  but,  if  he 
is  so  devoid  of  intelligence  as  to  be  unable  to  apprehend  apparent 
danger,  one  through  whose  negligence  he  is  injured,  having  notice  of 
his  mental  incapacity,  cannot  escape  liability  on  the  ground  of  con- 
tributory negligence.3 

PHYSICAL    CONDITION    AN    ELEMENT    OF  CONTRIBUTORY 

NEGLIGENCE. 

30.  The  physical  condition  of  plaintiff  at  the  time  of  the 
injury  may  properly  be  considered  in  determining 
the  degree  of  care  to  be  exercised  by  both  himself 
and  the  defendant,  reference  being  had  to  plain- 
tiff's possible  decrepitude,  blindness,  deafness,  lame- 
ness, and  sex. 

Physical  condition  is  merely  one  of  the  circumstances  to  be  con- 
sidered in  applying  the  test  of  ordinary  care  to  the  conduct  under  in- 
vestigation, but  is  often  all-important  in  determining  liability.  While 
it  is  not  negligence  per  se  in  an  active,  able-bodied  man  to  get  on  or 
off  a  car  when  it  is  moving  slowly,1  such  an  act  would  be  clearly  negli- 
gent in  one  old,  weak,  sick,  lame,  or  otherwise  infirm.2  Physical  in- 
firmities place  on  the  afflicted  person  an  obligation  for  increased 
prudence  and  care.  While  a  person  cannot  be  held  responsible  for 
failure  to  exercise  a  faculty  which  he  does  not  possess,  yet  the  knowl- 
edge of  his  infirmity  should  render  him  more  cautious  about  placing 
himself  in  a  position  where  his  incapacity  increases  the  danger,  and 
when  necessarily,  in  a  dangerous  place  the  incapacity  imposes  the 
obligation  of  an  increased  activity  of  the  remaining  unimpaired v 
senses.3  Thus  deafness  requires  increased  vigilance  in  the  use  of 

s  Worthington  v.  Mencer,  96  Ala.  310,  11  South.  72. 

§  30.  i  Citizens'  St.  R.  Co.  v.  Spahr,  7  Ind.  App.  23,  33  X.  E.  446;  Chicago- 
&  A.  R.  Co.  v.  Byrum,  153  111.  131,  38  X.  E.  578;  Lewis  v.  Canal  Co.,  145  X.  Y. 
508,  40  X.  E.  248;  Schacherl  v.  Railway  Co.,  42  Minn.  42,  43  X.  W.  837. 

2  Cincinnati,  H.  &  D.  Ry.  Co.  v.  Xolan,  8  Ohio  Cir.  Ct.  R.  347;    Chicago  &  A. 
R.  Co.  v.  Means,  48  111.  App.  396;    Briggs  v.  Railway  Co.,  148  Mass.  72,  19  X. 
E.   19. 

3  Chicago  &  X.  E.  Ry.  Co.  v.  Miller,  46  Mich.  532,  9  X.  W.  841;  Hayes  v.  Rail- 
road Co.,  Ill  U.  S.  228,  4  Sup.  Ct  3G9;    Central  R.  Co.  v.  Feller,  84  Pa.  St. 


§    30)  PHYSICAL    CONDITION    AS    AN    ELEMENT.  75 

the  eyes,4  and  when  crossing  a  railroad  track  it  is  negligent  in  a  deaf 
person  not  to  keep  a  sharp  lookout  for  trains.5 

Negligence  will  never  be  imputed  to  those  who  are  physically  de- 
ficient for  the  mere  reason  that  they  are  pursuing  their  ordinary  avo- 
cations when  injured,6  but  they  must  still  exercise  ordinary  care, 
such  as  they  are  capable  of  using;  and  one  with  poor  sight  should 
use  greater  care  to  avoid  obstructions  in  the  street  than  one  whose 
eyesight  is  normal.7  The  mere  fact  of  blindness  in  one  who,  unat- 
tended, walks  the  streets  of  a  large  city,  does  not  warrant  the  con- 
clusion of  contributory  negligence  if  he  is  injured  by  falling  into  a 
cellar  way  negligently  left  open.8 

The  sex  of  the  injured  party  is  also  a  proper  matter  to  be  consid- 
ered by  the  jury  in  determining  what  was  ordinary  care  in  the  circum- 
stances, on  the  part  of  both  plaintiff  and  defendant; 9  and,  although 
it  has  been  held  error  to  charge  that  the  law  requires  a  less  degree 
of  care  in  a  woman  than  in  a  man,10  it  is  apprehended  that,  in  certain 
conditions,  acts  which  in  a  man  would  be  merely  for  the  consideration 
of  the  jury,  as  affecting  the  question  of  ordinary  care,  would  in  a 

226;  Lake  Shore  &  M.  S.  R.  Co.  v.  Miller,  25  Mich.  274;  Laicher  v.  Railroad 
Co.,  28  La.  Ann.  320;  Purl  v.  Railway  Co.,  72  Mo.  168;  Cogswell  v.  Railroad 
Co.,  6  Or.  417;  Morris  &  E.  R.  Co.  v.  Haslan,  33  X.  J.  Law,  147;  Chicago,  B.  & 
Q.  R.  Co.  v.  Triplett,  38  111.  482. 

4  Cleveland,  C.  &  C.  R.  Co.  v.  Terry,  8  Ohio  St.  570;  Fenneman  v.  Holden, 
75  Md.  1,  22  Atl.  1049. 

s  Illinois  Cent.  R.  Co.  v.  Buckner,  28  111.  299. 

«  Sleeper  v.  Sandown,  52  X.  H.  244;  Davenport  v.  Ruckman,  37  X.  Y.  5G8. 
The  test  is  always  ordinary  care  in  the  circumstances.  Cox  v.  Road  Co.,  33 
Barb.  (X.  Y.)  414;  Frost  v.  Inhabitants  of  Waltham,  12  Allen  (Mass.)  85; 
Thompson  v.  Inhabitants  of  Bridgewater,  7  Pick.  (Mass.)  188;  Renwick  v. 
Railroad  Co.,  36  X.  Y.  133. 

"  Winn  v.  City  of  Lowell,  1  Allen  (Mass.)  177;  Sleeper  v.  Sandown,  52  X. 
H.  244;  Davenport  v.  Ruckman,  37  X.  Y.  5G8;  Peach  v.  City  of  Utica,  10  Hun 
(X.  Y.)  477. 

s  Smith  v.  Wildes,  143  Mass.  556,  10  X.  E.  4443,  followed  in  Xeff  v.  Inhabit- 
ants of  Wellesley,  148  Mass.  487,  20  X.  E.  111. 

a  Hasseuyer  v.  Railroad  Co.,  48  Mich.  205,  12  X.  W.  155;  Benjamin  v.  Rail- 
way  Co.,  160  Mass.  3,  35  X.  E.  95. 

ioHassenyer  v.  Railroad  Co.,  supra.  In  this  case  the  court  said,  in  sub- 
stance: A  woman  driving  a  horse  presumably  lacks  the  amount  of  skill, 
knowledge,  dexterity,  and  steadiness  of  nerve  or  coolness  of  judgment— in 
short,  the  same  degree  of  competency— that  we  would  expect  in  a  man. 


76  CONTRIBUTORY    NEGLIGENCE.  (Cll.   2 

woman  be  held  to  constitute  contributory  negligence,  as  getting  off 
.a  moving  car.11 

On  the  other  hand,  when  the  infirmity  or  incapacity  of  the  person 
exposed  to  danger  is  known,  or.  might  reasonably  be  inferred,  by  the 
defendant,  it  becomes  his  duty  to  use  proportionate  care  to  avoid  in- 
juring him.13  If  an  engineer  sees  a  person  walking  on  the  track,  he 
has  the  right,  ordinarily,  to  assume  that  he  will  get  out  of  the  way 
when  the  proper  signal  is  given.  "If,  however,  he  sees  a  child  of 
tender  years  upon  the  track,  or  any  person  known  to  him  to  be,  or 
from  his  appearance  giving  him  good  reason  to  believe  that  he  is,  in- 
sane, or  badly  intoxicated,  or  otherwise  insensible  of  danger,  or  un- 
able to  avoid  it,  he  has  no  right  to  presume  that  he  will  get  out  of  the 
way,  but  should  act  upon  the  belief  that  he  might  not,  and  should 
therefore  take  means  to  stop  his  train  in  time."  13 

SAME— INTOXICATION. 

31.  Intoxication  is  always  competent,  but  never  conclu- 
sive, evidence  of  contributory  negligence.1 

11  In  Snow  v.  Provincetown,  120  Mass.  580,  the  charge  of  the  trial  court  was 
approved:     "Care  implies  attention  and  caution,  and  ordinary  care  is  such  a 
degree  of  attention  and  caution  as  a  person  of  ordinary  prudence,   of  the 
plaintiff's  age  and  sex,  would  commonly  and  might  reasonably  be  expected  to 
•exercise  under  like  circumstances;"    and  on  appeal  it  was  held  unexceptionable. 
And  in  City  of  Bloomington  v.  Perdue,  99  111.  329,  the  charge  that  plaintiff 
was  bound  to  observe  the  conduct  of  a  woman  of  common  or  ordinary  pru- 
dence was  held  not  to  be  erroneous. 

12  Schierhold  v.  Railroad  Co.,  40  Cal.  447;    Chicago  &  R.  I.  R.  Co.  v.  Mc- 
Kean,  40  111.  218;    Reg.  v.  Longbottom,  3  Cox,  Cr.  Cas.  439;    East  Tennessee  & 
G.  R.  Co.  v.  St.  John,  5  Sneed  (Tenn.)  524;    O'Mara  v.  Railroad  Co.,  38  N.  Y. 
445;    City  of  Champaign  v.  White,  38  111.  App.  233;    Rex  v.  Walker,  1  Car.  & 
P.  320. 

is  Christiancy,  C.  J.,  in  Lake  Shore  &  M.  S.  R.  Co.  v.  Miller,  25  Mich.  274. 

§  31.  i  Abb.  Tr.  Ev.  p.  585,  §  12,  citing  Stuart  v.  Machiasport,  48  Me.  477; 
Baker  v.  City  of  Portland,  58  Me.  199.  See,  also,  Seymer  v.  Town  of  Lake,  66 
Wis.  651,  29  N.  W.  554;  Wynn  v.  Allard,  5  Watts  &  S.  (Pa.)  524;  Illinois 
Cent.  R.  Co.  v.  Cragin,  71  111.  177;  Cleghorn  v.  Railroad  Co.,  56  X.  Y.  44; 
People  v.  Eastwood,  14  N.  Y.  562;  Wood  v.  Village  of  Andes,  11  Hun  (N. 
Y.)  543;  Cassedy  v.  Stockbridge,  21  Vt  391;  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Bell,  70  HI.  102;  Fitzgerald  v.  Town  of  Weston,  52  Wis.  354,  9  N.  W.  13;  Bal- 
timore &  O.  R.  Co.  v.  State,  81  Md.  371,  32  Atl.  201. 


§    31)  PHYSICAL    CONDITION    AS    AN    ELEMENT.  77 

Intoxication  does  not  generally  deprive  a  person  entirely  of  his- 
senses  or  his  judgment,  and,  although  it  is  a  matter  of  common 
knowledge  that  a  man  is  not  so  prudent  when  he  is  drunk  as  when  he- 
is  sober,  the  vital  question  remains,  as  always,  did  he  use  the  ordi- 
nary care  of  a  sober  man?  2  or,  failing  to  use  that  ordinary  care,  was- 
his  negligence  a  proximate  cause  of  his  injury?  3  UA  drunken  man 
is  as  much  entitled  to  a  safe  street  as  a  sober  one,  and  .much  more  in 
need  of  it;"  *  and  if,  in  the  exercise  of  ordinary  care,  he  is  injured 
through  the  negligence  of  defendant,  he  may  have  his  recovery.5  But 
the  fact  of  intoxication  in  no  degree  lessens  the  amount  of  care  which 
he  is  required  to  take,  and  he  is  held  to  equal  prudence  with  a  sober 
person  in  like  circumstances.6  He  may,  however,  require  that  others 

2  Alger  v.  Lowell,  3  Allen  (Mass.)  402:  Ford  v.  Umatilla  Co.,  15  Or.  313,  1& 
Pac.  33;  but  his  conduct  in  the  circumstances  may  be  such  as  to  preclude  any 
right  to  recover,  Wood  v.  Village  of  Andes,  11  Hun  (N.  Y.)  543;  Cassedy  v, 
Stockbridge,  21  Vt.  391. 

s  Ward  v.  Railway  Co.,  85  Wis.  G01,  55  X.  W.  771;  Alger  v.  City  of  Low- 
ell, 3  Allen  (Mass.)  406;  Central  Railroad  &  Banking  Co.  v.  Phinazee,  93  Ga. 
488,  21  S.  E.  GG;  Robinson  v.  Pioche,  5  Cal.  4GO;  Rhyner  v.  City  of  Menasha, 
1)7  Wis.  523,  73  X.  W.  41;  Ward  v.  Railway  Co.,  85  Wis.  601,  55  N.  W.  771; 
Morris  v.  Railroad  Co.,  68  Hun,  39,  22  X.  Y.  Supp.  666;  Bradwell  v.  Railway 
Co.,  153  Pa.  St.  105,  25  Atl.  623;  Lane  v.  Railway  Co.,  132  Mo.  4,  33  S.  W.  645. 

*  Heydenfeldt,  J.,  in  Robinson  v.  Pioche,  5  Cal.  461. 

5  Seymer  v.  Town  of  Lake,  66  AVis.  651,  29  N.  W.  554;  Stuart  v.  Machias- 
port,  48  Me.  477;  Ford  v.  Umatilla  Co.,  15  Or.  313,  16  Pac.  33;  Weymire  v. 
Wolfe,  52  Iowa,  533,  3  X.  W.  541;  Loewer  v.  City  of  Sedalia,  77  Mo.  431;  Al- 
ger v.  Oity  of  Lowell,  3  Allen  (Mass.)  406;  City  of  Salina  v.  Trosper,  27  Kan. 
545;  Baker  v.  City  of  Portland,  58  Me.  199,  205;  Baltimore  &  O.  R.  Co.  v. 
Boteler,  38  Md.  568;  Healy  v.  Mayor,  etc.,  3  Hun  (X.  Y.)  708;  Ditchett  v. 
Railroad  Co.,  5  Hun  (X.  Y.)  165;  Kingston  v.  Railway  Co.,  112  Mich.  40,  701 
X.  W.  315,  74  X.  W.  230. 

e  Johnson  v.  Railroad  Co.,  104  Ala.  241,  16  South.  75;  Ford  v.  Umatilla  Co.,. 
15  Or.  313,  16  Pac.  33.  In  the  latter  case  the  court  says:  "Whether  the  re- 
spondent (plaintiff)  was  drunk  or  sober,  he  had  a  right  to  suppose  that  a 
bridge  open  to  the  use  of  the  public,  and  under  control  of  the  county  officials,, 
would  bear  up  his  load  in  crossing  it;  *  *  *  and,  because  the  respondent 
might  bo  inclined  to  be  more  credulous  when  intoxicated  than  when  sober, 
it  was  no  fact  that  would  excuse  the  appellant.  *  *  *  There  is  no  pre- 
tense that  respondent  drove  his  team  carelessly  or  recklessly,  or  did  any  act 
which  contributed  to  the  injury,  except  in  attempting  to  cross  the  bridge,  and" 
the  appellant,  in  the  manner  before  suggested,  invited  him  to  do  that.''  And 
it  is  no  excuse  for  injuries  caused  by  defendant  when  intoxicated  that  the- 


78  CONTRIBUTORY    NEGLIGENCE.  (Ch.  2 

shall  exercise  ordinary  care  in  their  conduct  towards  him,  and  his  in- 
toxication will  not  excuse  them  for  failure  so  to  do,  or  relieve  them 
from  liability  for  injuries  caused  thereby.7 

Intoxicated  Trespassers. 

Although  intoxication  is  never  a  defense  to  contributory  negli- 
gence, there  would  seem  to  be  no  valid  reason  why  an  intoxicated 
trespasser  should  be  treated  by  the  law  with  greater  severity  than 
a  sober  one.  If  it  appears  that  a  sober  trespasser,  in  the  same  cir- 
cumstances, and  using  the  same  degree  of  care,  would  be  entitled  to 
recover  for  injuries  caused  by  the  negligence  of  the  proprietor,  it  is 
submitted  that  no  degree  of  inebriety  should  change  his  legal  status.8 
While  this  position  is  not  strongly  supported  by  decisions,  few,  if  any, 
•cases  can  be  found  which  directly  refute  it,  although  so  eminent  an 
authority  as  Mr.  Beach  takes  a  radically  different  view  of  the  propo- 
sition, and  says :  "Drunkenness,  however,  on  the  part  of  a  trespasser, 
is  universally  held  to  be  such  negligence  as  will  prevent  entirely  any 
recovery  of  damages  for  injuries  sustained  at  the  time  or  by  reason 
•of  the  trespass."  9  We  fail  to  find  any  authorities  for  this  proposi- 
tion. It  is  true  the  courts  have  quite  uniformly,  and  very  consistent- 
ly, held  that  trespassers  upon  railroad  property  cannot  recover  for 
injuries  suffered  by  reason  of  their  intoxication;  but  it  is  believed 
that  the  gist  of  this  holding,  in  every  case,  lies  in  the  finding,  either 
of  fact  or  law,  that  their  negligent  conduct  contributed  to  the  harm, 
not  that  the  combination  of  drunkenness  and  trespass  created  an 
absolute  bar  to  recovery.10 

liquor  was  sold  him  by  the  plaintiff.  Cassady  v.  Magher,  85  Ind.  228;  John- 
son v.  Railroad  Co.,  61  111.  App.  522. 

7  Rommel  v.  Schambacher,  120  Pa.  St.  579,  11  Atl.  779;  Kean  v.  Railroad 
Co.,  61  Md.  154;  Houston  &  T.  C.  R.  Co.  v.  Reason,  61  Tex.  613. 

« In.  Louisville,  O.  &  L.  R.  Co.  v.  Sullivan,  81  Ky.  624,  a  drunken  passenger 
refused  to  pay  his  fare,  and  was  negligently  put  off  in  the  snow  by  the  con- 
ductor. Held,  that  he  could  recover.  Memphis  &  C.  R.  Co.  v.  Jones,  2  Head 
<Tenn.)  517. 

»  Beach,  Contrib.  Neg.  (2d  Ed.)  §§  391,  392. 

10  Denman  v.  Railroad  Co.,  26  Minn.  357,  4  X.  W.  605;  McClelland  v.  Rail- 
way Co.,  94  Ind.  276;  Yarnall  v.  Railway  Co.,  75  Mo.  575;  Little  Rock  &  Ft. 
S.  Ry.  Co.  v.  Pankhurst,  36  Ark.  371;  Houston  &  T.  C.  R.  Co.  v.  Smith,  32 
Tex.  178;  Houston  &  T.  C.  R.  Oo.  v.  Sympkins,  54  Tex.  615;  Illinois  Cent.  R. 
€o.  v.  Hutchinson,  47  111.  408;  Manly  v.  Railroad  Co.,  74  N.  C.  655;  Richard- 


§    32)  COMPARATIVE    NEGLIGENCE.  79 

The  opinion  of  witnesses,  other  than  experts,  is  competent  to  prove 
intoxication,11  and  it  is  always  a  question  for  the  jury. 


COMPARATIVE   NEGLIGENCE 

32.  It  was  formerly  held  in  a  few  states  that,  where  the 
negligence  of  the  defendant  greatly  outweighed 
that  of  the  plaintiff,  slight  negligence  on  the  part 
of  the  latter  would  not  prevent  a  recovery,  but  the 
doctrine  is  now  practically  obsolete. 

The  doctrine  of  comparative  negligence  exists  in  but  one  or  two 
states  to-day,  and,  indeed,  it  is  doubtful  if  any  state  is  prepared  to 
admit  frankly  that  the  rule,  pure  and  simple,  obtains  in  its  courts. 
The  rule  is  thus  stated  in  one  of  the  earlier  cases  in  Georgia:  "That, 
although  the  plaintiff  be  somewhat  in  fault,  yet,  if  the  defendant  be 
grossly  negligent,  and  thereby  occasioned  or  did  not  prevent  the  mis- 
chief, the  action  may  be  maintained."  x  This  has  been  modified  ma- 
terially in  later  decisions,2  and  it  may  be  said  that  the  Georgia  rule  is 
not  yet  settled.3  although  the  tendency  of  their  courts  is  to  require 
the  jury  to  reduce  the  damages  in  proportion  to  the  contributory 

son  v.  Railroad  Co.,  8  Rich.  Law  (S.  C.)  120;  Felder  v.  Railroad  Co.,  2  McMui. 
(S.  C.)  403;  Southwestern  R.  Co.  v.  Haukerson,  61  Ga.  114;  Weymire  v. 
Wolfe,  52  Iowa,  533,  3  N.  W.  541;  Mulherrin  v.  Railroad  Co.,  81  Pa.  St.  366. 

11  Thomp.  Xeg.  p.  779,  §  2,  and  cases  there  collected;  also  see  People  v. 
Eastwood,  14  N.  Y.  562;  Brannan  v.  Adams,  76  111.  331;  Woolheather  v.  Ris- 
ley,  38  Iowa,  486;  McKee  v.  Nelson,  4  Cow.  (X.  Y.)  355;  People  v.  Gaynor,  33 
App.  Div.  98,  53  X.  Y.  Supp.  86;  Quinn  v.  O'Keeffe,  9  App.  Div.  68,  41  X.  Y. 
Supp.  116;  Felska  v.  Railroad  Co.,  152  X.  Y.  339,  46  N.  E.  613. 

§32.  i  Augusta  &  S.  R.  Co.  v.  McElmurry.  24  Ga.  75,  substantially  fol- 
lowed, in  Mayor,  etc.,  of  City  of  Rome  v.  Dodd,  58  Ga.  238.  In  Atlanta  & 
R.  A.  L.  R.  Co.  v.  Ayers,  53  Ga.  12,  we  find  this  modification  of  the  rule: 
"If  it  appears  that  both  parties  were  guilty  of  negligence,  and  that  the  person 
injured  could  not,  by  ordinary  care  and  diligence,  have  avoided  the  conse- 
quences to  himself  of  the  negligence  of  the  company's  agents,  the  plaintiff  may 
recover,  but  the  jury  should  lessen  the  damages  in  proportion  to  the  negligence 
and  want  of  ordinary  care  of  the  injured  party."  See,  also,  Macon  &  W.  R. 
Co.  v.  Davis,  27  Ga.  113;  Flanders  v.  Meath,  Id.  358. 

2  Atlanta  &  R.  A.  L.  R.  Co.  v.  Ayers,  53  Ga.  12. 

»  Beach,  Coutrib.  Xeg.  (,2d  Ed.)  §  92. 


80  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 

negligence  of  the  plaintiff.*  A  similar  result  seems  to  be  reached  by 
statute  in  Tennessee  in  actions  against  railroads,  unless  the  plaintiff's 
contributory  negligence  is  the  direct  cause  of  his  own  injury.5 

In  Kansas,  from  an  early  date,  it  has  been  quite  uniformly  held 
that  the  plainiiff  need  not  be  entirely  free  from  negligence  to  entitle 
him  to  recover;  but  it  would  seem  that  the  relative  fault  of  the 
parties  must  be  in  strong  contrast,  gross  negligence  of  defendant 
against  slight  negligence  of  plaintiff,  with  a  similar  comparison  of 
its  causative  effect.8  This  confusion  of  the  degrees  of  negligence 
with  proximateness  and  remoteness  of  cause  appears  in  the  leading 
case  on  this  subject,  the  court  saying:  "An  act  that  may  be  grossly 
negligent,  if  it  proximately  contributes  to  the  injury,  may  be  reason- 
ably careful,  if  it  only  remotely  contributes  thereto."  7  And  in  a 
later  case  the  following  instruction  is  approved:  ''If  the  jury  believe 
from  the  evidence  that  the  plaintiff's  negligence  contributed  to  the 
injury  complained  of,  he  cannot  recover.  But  if  such  negligence  was 
only  slight,  or  the  remote  cause  of  the  injury,  he  may  still  recover, 
notwithstanding  such  slight  negligence  or  remote  cause."  8  Thus,  as 
observed  by  Mr.  Beach,9  the  doctrine  is  formulated  in  such  a  way  as 
to  suggest  the  conclusion  that  "slight  negligence"  is  synonymous  with 
negligence  which  is  but  a  remote  cause,  and  that  "gross  negligence" 
means  hardly  more  than  negligence  which  is  a  proximate  cause, — a 
mistaking  of  causation  for  negligence. 

*  Atlanta  &  R.  A.  L.  R.  Co.  v.  Ayers,  53  Ga.  12;  Alabama  G.  S.  Ry.  Co.  v. 
Coggins,  32  C.  C.  A.  1,  88  Fed.  455;  Southern  Ry.  Co.  v.  Watson,  104  Ga.  243, 
30  S.  E.  818. 

B  East  Tennessee,  V.  &  G.  R.  Co.  v.  Fain,  12  Lea,  35;  Louisville,  N.  &  G.  S. 
R.  Co.  v.  Fleming,  14  Lea,  128;  Dush  v.  Fitzhugh,  2  Lea,  307;  Railroad  Co. 
v.  Walker,  11  Heisk.  383;  Southern  R.  Co.  v.  Pugh,  97  Tenn.  624,  37  S.  W. 
555. 

« Union  Pac.  Ry.  Co.  v.  Rollins,  5  Kan.  167;  Wichita  &  W.  R.  Co.  v. 
Davis,  37  Kan.  743,  16  Pac.  78;  Caulkins  v.  Mathews,  5  Kan.  191;  Sawyer  v. 
Sauer,  10  Kan.  466;  Pacific  R.  Co.  v.  Houts,  12  Kan.  328;  Kansas  Pac.  Ry. 
Co.  v.  Pointer,  14  Kan.  37;  Edgerton  v.  O'Neil,  4  Kan.  App.  73,  46  Pac.  206; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Henry,  57  Kan.  154,  45  Pac.  576;  St.  Louis  & 
S.  F.  Ry.  Co.  v.  Stevens,  3  Kan.  App.  176,  43  Pac.  434. 

T  Union  Pac.  Ry.  Co.  v.  Rollins,  5  Kan.  167,  at  page  182. 

s  Sawyer  v.  Sauer,  10  Kan.  466. 

»  Beach,  Contrib.  Neg.  (2d  Ed.)  §  87. 


§  33)  EVIDENCE BURDEN  OF  PROOF.  81 

It  appears  that  the  doctrine  is  no  longer  recognized  by  the  supreme 
court  of  Illinois.10 


EVIDENCE— BURDEN    OF  PROOF. 

33.  If  contributory  negligence  is  not  disclosed  by  plain- 
tiff's case,  the  burden  of  proving  it  is  on  the  de- 
fendant. 

"The  question  as  to  burden  of  proof  in  respect  to  plaintiff's  freedom 
from  negligence,  and  as  to  whether  he  should  make  the  affirmative 
averment  that  he  exercised  proper  care  and  was  free  from  negligence, 
is  new  in  this  court,  and  is  involved  in  uncertainty  by  the  conflicting 
and  evasive  decisions  of  the  courts  of  other  states.  While  some 
courts  hold  that  he  must  allege  and  affirmatively  establish  that  he 
was  free  from  culpable  negligence  contributing  to  the  injury,  others 
hold  that  his  negligence  is  matter  of  defense,  of  which  the  burden  of 
pleading  and  proving  rests  upon  the  defendant."  *  The  question, 
which  party  shall  shoulder  the  burden  of  proving  contributory  negli- 
gence or  freedom  from  fault,  seems  to  be  as  far  from  a  definite  set- 
tlement to-day  as  when  the  opinion  from  which  the  above  is  an  ex- 
cerpt was  written.  In  the  same  case,  Wagner,  J.,  goes  on  to  say: 
''Negligence  on  the  part  of  the  plaintiff  is  a  mere  defense,  to  be  set 
up  in  the  answer  and  shown  like  any  other  defense,  though,  of  course, 
it  may  be  inferred  from  the  circumstances  proved  by  the  plaintiff  upon 
the  trial.  It  seems  to  be  illogical,  and  not  required  by  the  rules  of 
good  pleading,  to  compel  a  plaintiff  to  aver  and  prove  negative  mat- 
ters in  cases  of  this  kind."  On  the  other  side,  an  equally  high  au- 
thority says :  "Wherever  there  is  negligence  on  the  part  of  the  plain- 
tiff, contributing  directly,  or  as  a  proximate  cause,  to  the  occurrence 
from  which  the  injury  arises,  such  negligence  will  prevent  the  plain- 
tiff from  recovery;  and  the  burden  is  always  upon  the  plantiff  to  es- 
tablish either  that  he  himself  was  in  the  exercise  of  due  care,  or  that 
the  injury  is  in  no  degree  attributable  to  any  want  of  proper  care  on 

10  City  of  Lanark  v.  Dougherty,  153  111.  163,  38  N.  E.  892;  Chicago  &  A. 
R.  Co.  v.  Kelly,  75  111.  App.  490;  Chicago,  B.  &  Q.  R.  Co.  v.  Levy,  160  111.  385, 
43  N.  E.  357;  Cicero  &  P.  St.  Ry.  Co.  v.  Meixner,  160  111.  320,  43  N.  E.  823; 
Kinnare  v.  Railway  Co.,  57  111.  App.  153. 

§  33.     i  Thompson  v.  Railroad  Co.,  51  Mo.  190. 
BAR.NEG.— 6 


82  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 

his  part."  2  This  ruling  is  founded  in  good  sense  as  well  as  sound 
law,  and  is  undoubtedly  the  generally  accepted  doctrine  to-day 
throughout  this  country.3  Even  in  those  states,  however,  where  this 
doctrine  has  been  uniformly  accepted,  an  occasional  divergence  oc- 
curs which  would  seem  to  indicate  a  tendency  to  break  away  from 
the  rule.  Thus,  in  Minnesota  it  has  been  uniformly  held  that,  to 
maintain  an  action,  it  must  appear  that  the  injury  was  occasioned  by 
negligence  on  defendant's  part,  and  it  must  not  appear  that  there  was 
contributory  negligence  on  plaintiff's  part;  and,  when  the  undisputed 
facts  of  the  case  show  contributory  negligence  on  the  part  of  the 
plaintiff,  it  is  proper  for  the  court  to  rule,  as  a  matter  of  law.  That 
the  plaintiff  cannot  recover.4  Notwithstanding  this  wyell-settled  rule, 
however,  the  supreme  court  of  Minnesota  has  recently  held  that  the 
plaintiff  may  establish  a  prima  facie  case,  although  his  own  uncdn- 
troverted  testimony  discloses  contributory  negligence  in  law.8 

2  Wells,  J.,  in  Murphy  v.  Deane,  101  Mass.  466,  citing  Trow  v.  Railroad 
Co.,  24  Vt.  487;  Birge  v.  Gardner,  19  Conn.  507. 

s  Allyn  v.  Railroad  Co.,  105  Mass.  77;  Burns  v.  Railroad  Co.,  101  Mass.  50; 
Lake  Shore  &  M.  S.  R.  Co.  v.  Miller,  25  Mich.  274;  Rothe  v.  Railroad  Co.,  21 
Wis.  256;  Belief ontaine  Ry.  Co.  v.  Hunter,  33  Ind.  335;  North  Pennsylvania 
R.  Co.  v.  Heileman,  49  Pa.  St.  60;  McKee  v.  Bid  well,  74  Pa.  St.  218;  Wilcox 
v.  Railroad  Co.,  39  N.  Y.  358;  Conner  v.  Railroad  Co.,  146  Ind.  430,  45  N.  E. 
662;  Miller  v.  Miller,  17  Ind.  App.  605,  47  N.  E.  338;  Whalen  v.  Gaslight  Co., 
151  N.  Y.  70,  45  N.  E.  363;  Padgett  v.  Railroad  Co.,  7  Kan.  App.  736,  52  Pac. 
578;  Kammerer  v.  Gallagher,  58  111.  App.  561;  Campbell  v.  Mullen,  <>0  111. 
App.  497;  City  of  Huntingburg  v.  First  (Ind.  App.)  43  N.  E.  17;  Wahl  v. 
Shoulders,  14  Ind.  App.  665,  43  N.  E.  458. 

<  Donaldson  v.  Railway  Co.,  21  Minn.  293;  St.  Anthony  Falls  Water-Power 
Co.  v.  Eastman,  20  Minn.  277  (Gil.  249). 

6  Cleary  v.  Packing  Co.,  71  Minn.  150,  73  N.  W.  717.  In  the  trial  court  the 
defendant  made  a  motion  to  direct  a  verdict  on  the  ground  that  the  plaintiff 
had  failed  to  make  out  a  prima  facie  case,  and  an  appeal  was  taken  from  the 
order  denying  this  motion.  The  appellate  court  reversed  the  order,  and 
directed  judgment  entered  for  defendant,  on  the  ground  that  it  conclusively 
appeared  that  plaintiff  was  guilty  of  contributory  negligence  in  law.  On  a 
motion  for  a  rearguinent  the  appellate  court  modified  its  ruling,  and  remanded 
the  case  for  a  new  trial,  on  the  ground  that  the  defendant,  in  making  its 
motion  to  direct  a  verdict,  did  not  specify  the  contributory  negligence  of  plain- 
tiff as  a  ground;  thus,  in  effect,  holding  that  a  plaintiff  may  make  out  a  prima 
facie  case,  although  his  contributory  negligence  in  law  conclusively  appears 
in  its  presentation. 


§    33)  EVIDENCE BURDEN    OF   PROOF.  83 

Much  time  has  been  devoted  by  jurists  and  theorists  to  the  dis- 
cussion of  the  question  whether  a  presumption  of  ordinary  care  or  of 
negligence  exists  as  to  the  plaintiff's  conduct;  but  it  is  believed  that 
in  the  practical  consideration  of  the  problem,  as  it  presents  itself  in 
trials,  the  want  of  harmony  is  not  so  great  as  it  appears. 

The  gist  of  actionable  negligence  is  injury,  proximately  caused  by 
the  legal  fault  of  the  defendant.  If  the  plaintiff  proves  these  main 
facts,  he  has  made  out  a  prima  facie  case,  and  need  go  no  further. 
Suppose,  however,  that  he  shows  defendant's  negligence  and  his  own 
damage;  it  remains  to  show  the  causal  connection,  and  if  it  appears 
that  this  has  been  in  any  degree  broken,  or  interrupted  or  seriously 
jostled,  by  his  own  wrong  conduct,  his  proof  is  insufficient,  and  his 
case  will  fail,  unless  he  overcomes  the  presumption,  now  raised  for 
the  first  time,  of  want  of  ordinary  care.  And  it  is  apprehended  that 
a  slight  disturbance  of  this  causal  connection  by  his  own  wrong  con- 
duct will  be  sufficient  to  raise  the  presumption  of  want  of  ordinary 
care  on  the  part  of  the  plaintiff.  Thus,  if,  in  the  development  of  his 
case,  it  appears  that  in  the  circumstances  a  positive  duty  devolved 
upon  the  plaintiff,  he  must  show  either  performance,  or  inability  to 
perform,  or  that  the  nonperformance  had  no  proximate  influence  on 
the  result  of  defendant's  breach  of  duty,  as  the  duty  of  a  person 
about  to  cross  a  railroad  track  to  look  and  listen ; 6  or  if  it  appears 
that  he  wras  in  an  intoxicated  condition  at  the  time  of  the  accident ; 7 
or  if  the  plaintiff,  by  reason  of  infirmity,  is  incapable  of  ordinary 
care; 8  and,  if  the  instrumentalities  furnished  by  plaintiff  were  de- 
fective, the  presumption  is  raised  against  him,  unless  he  shows  that 
he  was  not  in  fault  in  employing  them.9  A  fortiori,  where  it  appears 
plainly  that  plaintiff's  undoubted  negligence  contributed  to  the  in- 
jury.10 On  the  other  hand,  the  absence  of  any  fault  on  the  part  of 
the  plaintiff  must  be  inferred  in  some  circumstances.  So,  if  he  proves 

e  Missouri  Pac.  Ry.  Co.  v.  Lee,  70  Tex.  496,  7  S.  W.  857;  State  v.  Maine 
Cent.  R.  Co.,  76  Me.  357;  Cleveland,  C.  &  C.  R.  Co.  v.  Crawford,  24  Ohio  St 
631;  Pennsylvania  R.  Co.  v.  Beale,  73  Pa.  St  504. 

T  Button  v.  Railroad  Co.,  18  X.  Y.  248;  Fitzgerald  v.  Town  of  Weston,  52 
Wis.  354,  9  X.  W.  13;  Stuart  v.  Machiasport,  48  Me.  477. 

s  Curtis  v.  Railroad  Co.,  49  Barb.  (N.  Y.)  148. 

9  Winship  v.  Enfleld,  42  X.  H.  197. 

10  Sprong  v.  Railroad  Co.,  60  Barb.  (X.  Y.)  30;    Stoeckman  v.  Railroad  Co., 
15  Mo.  App.  503. 


84  CONTRIBUTORY  NEGLIGENCE.  (Ch.  2 

that,  while  he  was  walking  on  a  public  sidewalk,  he  was  struck  by 
a  plank  negligently  dropped  from  defendant's  building  by  his  servant. 
Here  his  case  is  complete,  and  he  need  not  prove  the  absence  of  bar- 
riers, that  he  looked  up  or  heard  no  warning  cry,  or  any  other  matter 
to  negative  a  presumption  of  carelessness. 

In  the  opinion  of  Denio,  J.,  in  a  New  York  case,11  often  cited  a» 
expounding  the  rule  of  that  state,  which  is  supposed  to  place  the  bur- 
den of  proof  on  the  plaintiff,  we  find  the  following:  "The  true  rule, 
in  my  opinion,  is  this:  The  jury  must  eventually  be  satisfied  that  the 
plaintiff  did  not,  by  any  negligence  of  his  own,  contribute  to  the  in- 
jury;" which  is  nothing  more  than  a  negative  and  illogical  form  of  the 
proposition  that  the  plaintiff  must  prove  that  defendant's  negligence 
was  the  cause  of  his  injury,  and  it  goes  without  saying  that  this  is  not 
proven  if  it  appears  in  any  way  that  the  plaintiff's  negligence  in  any 
degree  contributed  to  the  injury. 

The  above  would  seem  to  be  the  only  logical  rule  in  all  cases,  and 
it  is  well  settled  in  many  states  and  in  the  federal  courts  that  the 
burden  of  proving  contributory  negligence,  where  it  does  not  appear 
from  the  plaintiff's  own  case,  is  on  the  defendant.12 

11  Johnson  v.  Railroad  Co.,  20  N.  Y.  04. 

12  Walker  v.  Westfield,  39  Vt.  246;    Smith  v.  Railroad  Co.,  35  N.  H.  356; 
Cassidy  v.  Angell,  12  R.  I.  447;   Delaware,  L.  &  W.  R.  Co.  v.  Toffey,  38  N.  J. 
Law,  525;    Pennsylvania  R.  Co.  v.  Weber,  76  Pa.  St.  157;    County  Com'rs  of 
Prince  George  Co.  v.  Burgess,  61  Md.  29;    Crouch  v.  Railway  Co.,  21  S.  C. 
495;    Thompson   v.   Central   Railroad   &   Banking   Co.,   54   Ga.    509;    Mobile 
&  M.  R.  Co.  v.  Crenshaw,  65  Ala.  566;   Dallas  &  W.  R.  Co.  v.  Spicker,  61  Tex. 
427;   Louisville,  C.  &  L.  R.  Co.  v.  Goetz's  Adm'x,  79  Ky.  442;   Fowler  v.  Rail- 
road Co.,  18  W.  Va.  579;    Baltimore  &  O.  R.  Co.   v.  Whitacre,  35  Ohio  St. 
627;    Hoth  v.  Peters,  55  Wis.  405,  13  N.  W.  219;    Hocum  v.  Weitherick,  22 
Minn.  152;    Stephens  v.  City  of  Macon,  83  Mo.  345;    Lincoln  v.  Walker,   18 
Neb.  244,  20  N.  W.  113;    Kansas  City,  L.  &  S.  R.  Co.  v.  Phillibert,  25  Kan. 
405;    Sanderson  v.  Frazier,  8  Colo.  79,  5  Pac.  632;    Lopez  v.  Mining  Co.,  1 
Ariz.  464,  2  Pac.  748;  MacDougall  v.  Railroad  Co.,  63  Cal.  431;  Grant  v.  Baker, 
12  Or.  329,  7  Pac.  318;    Hough  T.  Railway  Co.,  100  U.  S.  213;    Indianapolis 
&  St.  Louis  R.  Co.  v.  Horst,  93  U.  S.  291;   Washington  &  G.  Ry.  Co.  v.  Glad- 
mon,  15  Wall.  401;  Morgan  v.  Bridge  Co.,  5  Dill.  96,  Fed.  Cas.  No.  9,802;   The 
America,  6  Ben.  122,  Fed.  Cas.  No.  282;   Western  Ry.  Co.  of  Alabama  v.  Wil- 
liamson, 114  Ala,  131,  21  South.  827;    Consolidated  Traction  Co.  v.  Behr,  59 
N.  J.  Law,  477,  37  Atl.  142;    Sopherstein  v.  Bertels,  178  Pa.  St.  401,  35  Atl. 
1000;    Doyle  v.  Railroad  Co.,  27  C.  C.  A.  264,  82  Fed.  869;    Fitchburg  R.  Co. 
v.  Nichols,  29  C.  C.  A.  500,  85  Fed.  945;   Louth  v.  Thompson  (Del.  Super.)  39 


34;  PLEADING    CONTRIBUTORY    NEGLIGENCE.  85 


PLEADING  CONTRIBUTORY  NEGLIGENCE. 

34.  It  is  a  general  and  almost  universal  rule  that  plaintiff 
need  not  allege  his  freedom  from  fault.  The  ad- 
missibility  of  proof  of  contributory  negligence  un- 
der a  general  denial  is  not  general,  varying  in  dif- 
ferent states. 

In  those  states  where  the  burden  of  proof  is  on  the  defendant,  it 
follows,  as  of  course,  that  freedom  from  fault  need  not  be  alleged  in 
the  complaint,1  and,  even  in  those  states  where  the  burden  is  on  the 
plaintiff,  the  same  rule  prevails,  with  one  or  two  exceptions; 2  this 
seeming  inconsistency  being  explained  on  the  ground  that,  if  plain- 
tiff proves  that  the  injury  complained  of  was  proximately  caused  by 
defendant's  negligence,  it  must  follow  that  plaintiff's  fault  did  not 
contribute  to  the  result. 

Of  the  states  placing  the  burden  on  the  plaintiff,  Indiana  appears 
to  be  the  only  one  which  consistently  requires  the  plaintiff  to  allege 
that  he  was  free  from  contributory  negligence.3 

Atl.  1100;  Wood  v.  Bartholomew,  122  N.  C.  177,  29  S.  E.  959;  City  of  Hills- 
fcoro  v.  Jackson  (Tex.  Civ.  App.)  44  S.  W.  1010;  Houston  &  T.  C.  Ry.  Co.  v. 
O'Neal  (Tex.  Civ.  App.)  45  S.  W.  921;  Harrington  v.  Mining  Co.  (Utah)  53 
Pac.  737;  Rhyner  v.  City  of  Menasha,  97  Wis.  523,  73  N.  W.  41;  Pullman 
Palace-Car  Co.  v.  Adams  (Ala.)  24  South.  921;  Maxwell  v.  Railway  Co.,  1 
Marv.  199,  40  Atl.  945;  Mills  v.  Railway  Co.,  1  Marv.  269,  40  Atl.  1114; 
Baker  v.  Railroad  Co.  (Mo.  Sup.)  48  S.  W.  838;  Cox  v.  Railroad  Co.,  123  N.  C. 
€04,  31  S.  E.  848;  Daly  v.  Hinz,  113  Cal.  366,  45  Pac.  693;  Prosser  v.  Rail- 
way Co.,  17  Mont.  372,  43  Pac.  81;  Union  Stockyards  Co.  v.  Conoyer,  41  Neb. 
€17,  59  N.  W.  950;  Omaha  St.  Ry.  Co.  v.  Martin,  48  Neb.  65,  66  N.  W.  1007; 
Stewart  v.  City  of  Nashville,  96  Tenn.  50,  33  S.  W.  613;  Central  Tex.  &  N.  W. 
Ry.  Co.  v.  Bush,  12  Tex.  Civ.  App.  291,  34  S.  W.  133. 

§  34.  i  Holt  v.  Whatley,  51  Ala.  569;  Robinson  v.  Railroad  Co.,  48  Cal. 
409;  Cox  v.  Brackett,  41  111.  222;  Hocum  v.  Weitherick,  22  Minn.  152;  Smith 
v.  Railroad  Co.,  35  N.  H.  356;  Potter  v.  Railway  Co.,  20  Wis.  533;  Matthews 
v.  Bull  (Cal.)  47  Pac.  773;  Berry  v.  Railroad  Co.,  70  Fed.  193;  Johnson  v. 
Improvement  Co.,  13  Wash.  455,  43  Pac.  370;  Thompson  v.  Railway  Co.,  70 
Minn.  219,  72  N.  W.  962. 

2  May  v.  Inhabitants  of  Princeton,  11  Mete.  (Mass.)  442;  Lee  v.  Gaslight 
Co.,  98  N.  Y.  115. 

»  Evansville  &  C.  R.  Co.  v.  Hiatt,  17  Ind.  102;  Rogers  v.  Overton,  87  Ind. 
411;  Williams  v.  Moray,  74  Ind.  25.  But  it  is  sufficient  to  allege  that  the 


86  CONTRIBUTORY  NEGLIGENCE.  (Ch.  2 

In  some  states  proof  of  contributory  negligence  is  admissible  un- 
der a  general  denial,4  while  in  others  it  must  be  expressly  averred  in 
the  answer.6  There  is  no  general  rule  on  this  subject,  although  we 
find  it  thus  stated  by  two  of  the  leading  authorities:  "But  evidence 
of  the  plaintiff's  fault  is  inadmissible  under  a  general  denial;"  6  andr 
"The  defense  of  contributory  negligence  is  admissible  under  the  gen- 
eral plea  of  not  guilty  or  under  a  general  denial."  7 

CONTRIBUTORY  NEGLIGENCE  AS  QUESTION  OF  FACT. 

35.  The  question  of  contributory  negligence  is  generally 
one  of  fact  for  the  jury,  and,  unless  the  plaintiff's 
conduct  was  palpably  careless,  it  should  not  be  de- 
cided by  the  court.1 

injury  was  without  fault  on  plaintiff's  part,  Gheens  v.  Golden,  90  Ind.  427; 
Ohio  &  M.  Ry.  Co.  v.  Nickless,  71  Ind.  271;  or  even  that  it  was  wholly  caused 
by  defendant's  negligence,  Brinkman  v.  Bender,  92  Ind.  234;  Wilson  v.  Road1 
Co.,  83  Ind.  326;  City  of  Anderson  v.  Hervey,  67  Ind.  420;  Peirce  v.  Oliver, 
18  Ind.  App.  87,  47  N.  E.  485. 

*  St.  Anthony  Falls  Water-Power  Co.  v.  Eastman,  20  Minn.  277  (Gil.  249); 
Cunningham  v.  Lyness,  22  Wis.  236;  Ellet  v.  Railway  Co.,  76  Mo.  518;  (but 
see  Stone  v.  Hunt,  94  Mo.  475,  7  S.  W.  431);  MacDonell  v.  Buffum,  31  How, 
Prac.  154;  Indianapolis  &  C.  R.  Co.  v.  Rutherford,  29  Ind.  82;  Jonesboro  & 
F.  Turnpike  Co.  v.  Baldwin,  57  Ind.  86;  Grey's  Ex'r  v.  Trade  Co.,  55  Ala. 
387;  Denver,  T.  &  Ft.  W.  R.  Co.  v.  Smock,  23  Colo.  456,  48  Pac.  681;  Chesa- 
peake &  O.  Ry.  Co.  v.  Smith  (Ky.)  39  S.  W.  832. 

e  Stone  v.  Hunt,  94  Mo.  475,  7  S.  W.  431  (but  see  Ellet  v.  Railway  Co.,  76 
Mo.  518);  Western  Union  Tel.  Co.  v.  Apple  (Tex.  Civ.  App.)  28  S.  W.  1022; 
Willis  v.  City  of  Perry,  92  Iowa,  297,  60  N.  W.  727;  Martin  v.  Railway  Co., 
51  S.  C.  150,  28  S.  E.  303;  Clark  v.  Railway  Co.,  69  Fed.  543. 

a  Beach,  Contrib.  Neg.  (2d  Ed.)  §  443. 

7  Shear.  &  R.  Neg.  (4th  Ed.)  §  113. 

§  35.  i  O'Brien  v.  McGlinchy,  68  Me.  552;  Sleeper  v.  Railroad  Co.,  58  N, 
H.  520;  Fassett  v.  Roxbury,  55  Vt.  552;  Brooks  v.  Railroad  Co.,  135  Mass. 
21;  O'Connor  v.  Adams,  120  Mass.  427;  Beers  v.  Railroad  Co.,  19  Conn.  566; 
Bell  v.  Railroad  Co.,  29  Him  (N.  Y.)  500;  Thomas  v.  City  of  New  York,  28 
Hun  (N.  Y.)  110;  Salter  v.  Railroad  Co.,  88  X.  Y.  42;  Orange  &  N.  H.  R,  Co. 
v.  Ward,  47  N.  J.  Law,  560,  4  Atl.  331;  North  Pennsylvania  R.  Co.  v.  Kirk, 
90  Pa.  St.  15;  Mayor,  etc.,  of  City  of  Baltimore  v.  Holmes,  39  Md.  243;  Sheff 
v.  City  of  Huntington,  16  W.  Va.  307;  Central  R.  Co.  v.  Freeman,  66  Ga, 
170;  Louisville,  C.  &  L.  R.  Co.  v.  Goetz's  Adm'x,  79  Ky.  442;  Hill  v.  Gust,  55 
Ind.  45;  Town  of  Albion  v.  Hetrick,  90  Ind.  545;  Wabash,  St.  L.  &  P.  Ry.  Co. 


§    35)  CONTKIBUTORY    NEGLIGENCE    AS    QUESTION    OF    FACT.  87 

The  same  rules  substantially  govern  the  submission  to  the  jury 
of  either  the  plaintiff's  or  defendant's  negligence,  due  regard  being 
had  to  the  rule  of  the  particular  court  in  placing  the  burden  of  proof. 
Nor  should  the  court  withdraw  the  case  from  the  jury  for  the  rea- 
son that  to  its  mind  the  facts  were  so  weak  as  to  give  no  support  to 
the  proposition  of  negligence,  either  of  plaintiff  or  defendant.  The 
question  is,  rather,  are  the  facts  so  weak,  in  the  estimate  of  fair, 
sound  minds,  that  the  law  would  not  tolerate  a  verdict  founded  upon 
them  ? 2  If  but  one  inference  can  be  drawn  from  the  evidence,  it  is, 
of  course,  purely  a  question  of  law  for  the  decision  of  the  court. 

Where  the  action  is  to  recover  for  death  caused  by  defendant's 
negligence,  there  is  a  lack  of  harmony  as  to  the  presumption  of  negli- 
gence on  the  part  of  plaintiff,  there  being  no  direct  evidence  on  the 
point;  and  this,  even  in  those  courts  which  hold  that  the  burden  of 
proof  is  on  the  plaintiff.3  In  the  courts  where  the  defendant  must 
assume  the  burden,  the  discussion  can  hardly  arise. 

v.  Shacklet,  105  111.  364;  Anderson  v.  Morrison,  22  Minn.  274;  Garrett  v. 
Railway  Co.,  36  Iowa,  121;  Kelly  v.  Railroad  Co.,  70  Mo.  604;  Swoboda  v. 
Ward,  40  Mich.  420;  Kelley  v.  Railway  Co.,  53  Wis.  74,  9  X.  W.  816;  Fer- 
naudes  v.  Railroad  Co.,  52  Cal.  45;  Bierbach  v.  Rubber  Co.,  14  Fed.  826,  15 
Fed.  490;  Cunningham  v.  Railway  Co.,  115  Cal.  561,  47  Pac.  452;  Town  of 
Salem  v.  Walker,  16  Ind.  App.  687,  46  N.  E.  90;  Hadley  v.  Railroad  Co.  and. 
App.)  46  N.  E.  935;  Union  Pac.  Ry.  Co.  v.  Lipprand,  5  Kan.  App.  484,  47  Pac. 
(J25;  Village  of  Culbertson  v.  Holliday,  50  Neb.  229,  69  N.  W.  853;  New  York 
&  G.  L.  Ry.  Co.  v.  Railway  Co.,  60  N.  J.  Law,  52,  37  Atl.  627;  Klinkler  v. 
Iron  Co.,  43  W.  Va.  219,  27  S.  E.  237;  Patton  v.  Railway  Co.,  27  C.  C.  A.  287, 
82  Fed.  979;  Herbert  v.  Southern  Pac.  Co.,  121  Gal.  227,  53  Pac.  651;  West 
Chicago  St.  R.  Co.  v.  Feldstein,  1G9  111.  139,  48  N.  E.  193;  Ashland  Coal,  Iron  & 
Railway  Co.  v.  Wallace's  Adm'r  (Ky.)  42  S.  W.  744;  Stone  v.  Railroad  Co., 
171  Mass.  536,  51  X.  E.  1;  Lillibridge  v.  McCann  (Mich.)  75  N.  W.  288;  Hy- 
gienic Plate  Ice  Mfg.  Co.  v.  Railroad  Co.,  122  N.  C.  881,  29  S.  E.  575;  Heck- 
man  v.  Evenson,  7  N.  D.  173,  73  N.  W.  427;  Mitchell  v.  Railway  Co.,  100 
Tenn.  329,  45  S.  W.  337;  Reese  v.  Mining  Co.,  15  Utah,  453,  49  Pac.  824;  Deis- 
enrleter  v.  Malting  Co.,  97  Wis.  279,  72  X.  W.  735;  Ward  v.  Manufacturing 
Co.,  123  X.  C.  248,  31  S.  E.  495;  Ryan  v.  Ardis,  190  Pa,  St.  66,  42  Atl.  372; 
Schwartz  v.  Shull  (W.  Va.)  31  S.  E.  914. 

2  Hart  v.  Bridge  Co.,  80  X.  Y.  622.  See,  also,  Xorthrup  v.  Railway  Co.,  37 
Hun  (X.  Y.)  295;  Greany  v.  Railroad  Co.,  101  X.  Y.  419,  5  N.  E.  425;  Payne 
v.  Reese,  l(fo  Pa.  St.  301. 

s  Where  there  was  no  direct  evidence  as  to  the  care  of  the  deceased,  In- 
diana, B.  &  W.  Ry.  Co.  v.  Greene,  106  Ind.  279,  6  N.  E.  603;  Cordell  v.  Rail- 


88  CONTRIBUTORY    NEGLIGENCE.  (Ch.   2 

In  any  event,  if  there  is  any  evidence  reasonably  tending  to  show 
contributory  negligence  on  the  part  of  plaintiff,  the  defendant  is  en- 
titled to  an  instruction  that  plaintiff  cannot  recover  if  his  negligence 
in  any  degree  contributed  to  the  injury  complained  of,  unless  it  fur- 
ther appears  that  the  defendant  might,  by  the  exercise  of  reasonable 
care  and  prudence,  have  avoided  the  consequences  of  the  injured 
party's  carelessness.* 

road  Co.,  75  N.  Y.  330.  Where  evidence  was  not  sufficient  to  warrant  a  find- 
ing that  there  was  no  negligence  on  the  part  of  deceased,  Reynolds  v.  Rail- 
road Co.,  58  N.  Y.  248.  Per  contra,  absence  of  evidence  of  ordinary  care  does 
not  justify  a  presumption  of  negligence,  Massoth  v.  Canal  Co.,  64  N.  Y.  524. 
See,  also,  in  general,  Jones  v.  Railroad  Co.,  28  Hun  (N.  Y.)  364;  Lindeman 
v.  Railroad  Co.,  42  Hun  (N.  Y.)  306. 

*  See  ante,  §  8,  notes  7,  8,  and  cases  cited;  Pittsburg,  Ft.  W.  &  C.  Ry.  Co. 
v.  Krichbaum's  Adm'r.  24  Ohio  St.  119;  Baltimore  &  O.  R.  Co.  v.  Whittaker, 
Id.  642.  Also,  see,  Patterson  v.  Railroad  Co.,  4  Houst.  (Del.)  103. 


§    36)  LIABILITY    OF    MASTER    TO    SERVANT.  89 

CHAPTER  HE. 

LIABILITY  OF  MASTER  TO  SERVANT. 

36.  Duty  of  Master. 

37.  Appliances  and  Places  for  Work. 

38.  Selecting  and  Retaining  Servants. 

39.  Rules  and  Regulations. 

40.  Promulgation  of  Rules. 

41.  Warning  and  Instructing  Servants. 

42.  Limitation  of  Master's  Duty. 

43.  Ordiaary  Risks. 

44.  Known  Dangers  Assumed. 

45.  Unusual  Dangers  not  Assumed. 

46.  Unknown  Defects  or  Dangers. 

47.  Promise  to  Repair. 

48.  Compliance  with  Express  Orders. 

49.  Servants  and  Fellow  Servants. 

50.  Common  Employment  as  Test. 
51-52.                    Vice  Principal. 

53-54.  Rule  in  Federal  Courts. 

55.  Concurrent  and  Contributory  Negligence. 

56.  Servants'  Own  Negligence  as  Proximate  Cause. 

DUTY  OF  MASTER. 

36.  It  is  the  duty  of  the  master,  -which  cannot  be  shifted 
by  delegation,  to  exercise  ordinary  care  to  protect 
his  servants  from  injury  while  in  his  employment,1 
and  includes 

§§  36-37.  i  Hough  v.  Railway  Co.,  100  U.  S.  213;  Baltimore  &  O.  &  C. 
R.  Co.  v.  Rowan,  104  Ind.  88,  3  N.  E.  627;  Tissue  v.  Railroad  Co.,  112  Pa.  St. 
•91,  3  Atl.  667;  Noyes  v.  Smith,  28  Vt.  59;  Ryan  v.  Fowler,  24  N.  Y.  410; 
Wabash  R.  Co.  v.  Kelley  (Ind.  Sup.)  52  N.  E.  152;  McGeary  v.  Railroad  Co. 
<R.  I.)  41  Atl.  1007;  Keown  v.  Railroad  Co.,  141  Mo.  SO,  41  S.  W.  926;  Oliver 
v.  Railroad  Co.,  42  W.  Va.  703,  26  S.  E.  444;  Sievers  v.  Lumber  Co.,  151  Ind. 
•642,  50  N.  E.  877;  Texas  Cent.  Ry.  Co.  v.  Lyons  (Tex.  Civ.  App.)  34  S.  W. 
362;  Bertha  Zinc  Co.  v.  Martin's  Adm'r,  93  Va.  791,  22  S.  E.  869;  Burues 
v.  Railway  Co.,  129  Mo.  41,  31  S.  W.  347;  Gulf,  W.  T.  &  P.  Ry.  Co.  v. 
Abbott  (Tex.  Civ.  App.)  24  S.  W.  299;  Morrisey  v.  Hughes.  65  Vt.  553.  27 
Atl.  205.  And  it  is  error  to  charge  that  a  railroad  company  owes  a  duty 


90  LIABILITY    OF    MASTER   TO    SERVANT.  (.Ch.   3 

(a)  The  duty  to  provide  proper  opportunities  and  instru- 

mentalities for  the  performance  of  the  work. 

(b)  The  duty  to  select  competent  fellow  servants  in  suf- 

ficient number. 

(c)  The  duty  to  establish  proper  regulations. 

SAME— APPLIANCES  AND  PLACES  FOR  WORK. 
37.  The  master  is  bound  to  use  ordinary  care  in  providing 
a  reasonably  safe  place  in  which,  and  reasonably 
safe  and   proper   materials   and  instruments  with 
which,  the  servant  may  do  his  work.* 

to  its  employes  to  do  all  that  human  care,  vigilance,  and  foresight  can  do. 
consistently  with  the  operating  of  its  road,  regarding  all  appliances.  Cleve- 
land, C.,  C.  &  St.  L.  R.  Co.  v.  Selsor,  55  111.  App.  685.  That  the  duty  cannot 
be  shifted  by  delegation,  Northern  Pac.  R.  Co.  v.  Herbert,  116  U.  S.  642,  647, 
U  Sup.  Ct.  590,  593,  where  the  court  says,  "No  duty  required  of  him  for  the 
safety  and  protection  of  his  servants  can  be  transferred,  so  as  to  exonerate 
him  from  such  liability."  On  this  point  see,  also,  Booth  v.  Railroad  Co.,  73- 
N.  Y.  38,  40;  Ford  v.  Railroad  Co.,  110  Mass.  240;  Chicago  &  N.  W.  Ry.  Co. 
v.  Jackson,  55  111.  492;  Cooper  v.  Railroad  Co.,  24  W.  Va.  37;  Texas  &  P. 
Ry.  Co.  v.  Barrett,  166  U.  S.  617,  17  Sup.  Ct.  707;  Herdler  v.  Range  Co.,  136- 
Mo.  3,  37  S.  W.  115;  Rollings  v.  Levering,  18  App.  Div.  223,  45  N.  Y.  Supp. 
942;  Norfolk  &  W.  R.  Co.  v.  Ampey,  93  Va.  108,  25  S.  E.  220;  Denver  & 
R.  G.  R.  Co.  v.  Sipes  (Colo.  Sup.)  55  Pac.  1093;  Ferris  v.  Hernsheim  (La.) 
24  South.  771;  Stewart  v.  Ferguson,  34  App.  Div.  515,  54  N.  Y.  Supp.  615; 
Wright  v.  Railroad  Co.,  123  N.  C.  280,  31  S.  E.  652;  McCauley  v.  Railway 
Co.,  10  App.  D.  C.  560;  Huber  v.  Jackson,  1  Marv.  374,  41  Atl.  92;  Chicaga 
&  A.  R.  Co.  v.  Maroney,  170  111.  520,  48  N.  E.  953;  Edward  Hines  Lumber 
Co.  v.  Ligas,  172  111.  315,  50  N.  E.  225;  Rice  &  Bullen  Malting  Co.  v.  Paulsen, 
51  111.  App.  123;  G.  H.  Hammond  Co.  v.  Mason,  12  Ind.  App.  469,  40  N.  E. 
642;  Northern  Pac.  R.  Co.  v.  Poirier,  15  C.  C.  A.  52,  67  Fed.  881.  Thus,  in 
the  selection  and  dismissal  of  servants,  Wright  v.  Railroad  Co.,  28  Barb.  80;. 
Walker  v.  Boiling,  22  Atl.  294;  in  providing  and  maintaining  suitable  nia- 

2  McCarthy  v.  Muir,  50  111.  App.  510;  Mclntyre  v.  Railroad  Co.,  163  Mass, 
189,  39  N.  E.  1012;  Fenderson  v.  Railroad  Co.,  56  N.  J.  Law,  708,  31  AtL 
767;  Fosburg  v.  Fuel  Co.,  93  Iowa,  54,  61  N.  W.  400;  Galveston,  H.  &  S.  A. 
Ry.  Co.  v.  Gormley  (Tex.  Civ.  App.)  27  S.  W.  1051;  Nordyke  &  Marmon  Co.  v. 
Van  Sant,  99  Ind.  188;  Chicago  &  N.  W.  R.  Co.  v.  Swett,  45  111.  197;  Perry 
v.  Ricketts,  55  111.  234;  Louisville  &  N.  R.  Co.  v.  Johnson,  27  C.  C.  A.  367, 
SI  Fed.  679. 


§    37)  APPLIANCES    AND    PLACES    FOR    WORK.  91 

It  is  not  incumbent  upon  the  master  to  furnish  the  best  or  safest 
equipment  for  the  performance  of  the  duty.  It  is  sufficient  if  the 
tools,  materials,  and  facilities  generally  are  reasonably  suitable  for 
the  prosecution  of  the  work,  and  could  be  used  with  reasonable  safety 
if  the  workman  exercised  ordinary  care.3  It  follows  that  it  is  not 
necessary  that  the  newest  inventions  or  the  most  improved  safeguards 
should  be  adopted  by  the  employer,4  and,  a  fortiori,  questions  of  mere 

chinery.  etc.,  Hough  v.  Railway  Co.,  100  U.  S.  213;  Fuller  v.  Jewett,  80  N.  Y. 
46;  Benzing  v.  Steimvay,  101  X.  Y.  547,  5  X.  E.  449;  Ford  v.  Railroad  Co.,  110 
Mass.  240;  in  inspection  of  machinery,  etc.,  Durkin  v.  Sharp,  88  N.  Y.  225; 
Brann  v.  Railroad  Co.,  53  Iowa.  595,  6  N.  W.  5;  Fay  v.  Railway  Co.,  30  Minn. 
231,  15  X.  W.  241;  O'Xeil  v.  Railway  Co.,  9  Fed.  337;  and  in  repairing  ma- 
chinery, etc.,  Shanny  v.  Androscoggin  Mills,  66  Me.  420;  Xorthern  Pac.  R. 
Co.  v.  Herbert,  116  U.  S.  642,  651,  6  Sup.  Ct.  590;  Bessex  v.  Railroad  Co.,  45 
Wis.  477;  Drymala  v.  Thompson,  26  Minn.  40,  1  N.  W.  255. 

s  Illinois  Cent.  R.  Co.  v.  Jones,  11  111.  App.  324;  Greenleaf  v.  Railroad  Co., 
29  Iowa,  14:  Payne  v.  Reese,  100  Pa.  St.  301;  Jones  v.  Granite  Mills,  126 
Mass.  84;  Bajus  v.  Railroad  Co.,  103  N.  Y.  312,  8  N.  E.  529;  Johnson  v. 
Mining  Co.,  16  Mont.  164,  40  Pac.  298;  Fosburg  v.  Fuel  Co.,  93  Iowa,  54,  61 
X.  W.  400;  St.  Louis  S.  W.  Ry.  Co.  v.  Jagerman,  59  Ark.  98,  26  S.  W.  591; 
Xutt  v.  Railway  Co.,  25  Or.  291,  35  Pac.  653;  Williams  v.  Railway  Co.,  119 
Mo.  316,  24  S.  W.  782;  Kansas  City  &  P.  R.  Co.  v.  Ryan,  52  Kan.  637,  35 
Pac.  292;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Wagner,  33  Kan.  660,  7  Pac.  204; 
Watts  v.  Hart,  7  Wash.  178,  34  Pac.  423;  Huber  v.  Jackson  &  Sharp  Co.,  1 
Marr.  374,  41  Atl.  92;  Chicago  &  E.  I.  R.  Co.  v.  Garner,  78  111.  App.  281; 
Chicago,  B.  &  Q.  R.  Co.  v.  Oyster  (Xeb.)  78  X.  W.  359;  Fritz  v.  Light  Co. 
(Utah)  56  Pac.  90;  Schwartz  v.  Shull  (W.  Va.)  31  S.  E.  914;  Last  Chance  Min- 
ing &  Milling  Co.  v.  Ames,  23  Colo.  167,  47  Pac.  382;  Quintana  v.  Refining 
Co.,  14  Tex.  Civ.  App.  347,  37  S.  W.  369;  Jones  v.  Shaw  (Tex.  Civ.  App.)  41 
S.  W.  690;  Gormully  &  Jeffery  Mfg.  Co.  v.  Olsen,  72  111.  App.  32;  Disano  v. 
Brick  Co.  (R.  I.)  40  Atl.  7.  Railroad  companies  are  not  bound  to  provide  the 
best  appliances,  Lake  Shore  &  M.  S.  Ry.  Co.  v.  McCormick,  74  Ind.  440; 
Umback  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  83  Ind.  191;  nor  the  most  improved 
machinery  in  a  factory,  Harsha  v.  Babicx,  54  111.  App.  586;  and  it  was  held 
error  to  charge  that  the  appliances  should  be  "of  modern  improvements  and 
safe,"  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Gormley  (Tex.  Civ.  App.)  27  S.  W. 
1051. 

4  Matteson  v.  Railroad  Co.,  62  Barb.  (X.  Y.)  364;  Sweeney  v.  Envelope  Co., 
101  X.  Y.  520,  5  X.  E.  358;  Wabash  Paper  Co.  v.  Webb,  146  Ind.  303,  45  X.  E. 
474;  Shadford  v.  Railway  Co.,  Ill  Mich.  390,  69  X.  W.  661;  Murphy  v. 
Hughes  (Del.  Super.)  40  Atl.  187;  Bonner  v.  Bridge  Co.,  5  Pa.  Super.  Ct.  281; 
Texas  &  P.  Ry.  Co.  v.  Thompson.  17  C.  C.  A.  524,  70  Fed.  944;  Chicago  &  G. 
W.  Ry.  Co.  v.  Armstrong,  62  111.  App.  228;  Wood  v.  Heiges,  83  Md.  257,  34 


92  LIABILITY    OF    MASTER   TO    SERVANT.  (Ch.   3 

convenience  or  facility  are  immaterial.8  And  where  the  tools  are 
simple,  and  their  construction  and  adaptability  to  the  work  within 
the  comprehension  of  ordinary,  untrained  intelligence,  the  user  can- 
not complain,  after  injury,  that  they  were  unsuitable, — as  a  ladder 
used  for  lighting  lamps,  which  was  not  provided  with  hooks  or  spikes, 
and,  in  consequence,  slipped,  and  caused  plaintiff  to  fall,  after  he  had 
used  it  with  safety  for  some  six  weeks.6 

The  Existence  of  the  Relation. 

A  servant  is  one  who  is  actually  or  impliedly  engaged  in  rendering 
service  or  assistance  at  the  request  and  for  the  benefit  of  the  master, 
and  the  peculiar  duties  which  the  master  owes  the  servant  arise  only 
when  the  servant  is  thus  employed  in  doing  his  work.  At  other 
times,  although  the  contract  relation  may  continue,  the  master's  duty 
to  him  is  no  other  or  greater  than  he  owes  to  any  third  person  in  like 
•circumstances,  and  the  schedule  hours  of  labor  afford  no  material 
test  of  the  existence  of  the  relation  in  any  concrete  case.7  Ordinarily 
the  relation  does  not  exist  while  the  sen-ant  is  going  to  or  from  the 
place  of  work,  but,  if  the  master  provides  transportation  for  the  serv- 
ant, the  relation  and  concomitant  duties  exist  wyhile  he  is  being  so 

Atl.  872;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Warner  (Tex.  Civ.  App.)  36  S.  W.  118; 
Bertha  Zinc  Co.  v.  Martin's  Adm'r,  93  Va.  791,  22  S.  E.  869;  France  v.  Rail- 
road Co.,  88  Hun,  318,  34  N.  Y.  Supp.  408;  Rooney  v.  Cordage  Co.,  161  Mass. 
153,  36  N.  E.  789.  Failure  to  provide  "target  switches"  on  railroad,  Salters 
v.  Canal  Co.,  3  Hun  (N.  Y.)  338;  nor  (in  the  absence  of  statute)  need  a  rail- 
road company  block  its  frogs,  McGinnis  v.  Bridge  Co.,  49  Mich.  466,  13  N.  W. 
819;  also  Lake  Shore  &  M.  S.  R.  Co.  v.  McCormick,  74  Ind.  440;  Philadelphia 
W.  &  B.  R.  Co.  v.  Keenan,  103  Pa.  St.  124;  Burns  v.  Railroad  Co.,  69  Iowa, 
450,  30  N.  W.  25.  Failure  to  use  air  brakes  instead  of  hand  brakes,  when  lat- 
ter were  considered  reasonably  safe  and  suitable,  France  v.  Railroad  Co.,  88 
Hun,  318,  34  N.  Y.  Supp.  408. 

e  Cook  v.  Manufacturing  Co.,  53  Hun,  632,  7  N.  Y.  Supp.  950;  Hough  v. 
Railway  Co.,  100  U.  S.  213;  Baltimore  &  P.  R.  Co.  v.  Mackey,  157  U.  S.  72, 
15  Sup.  Ot.  491. 

o  Marsh  v.  Chickering,  101  N.  Y.  396,  5  N.  E.  56;  Guggenheim  Smelting  Co. 
v.  Flanigan  (N.  J.  Err.  &  App.)  41  Atl.  844;  Biddiscomb  v.  Cameron,  35  App. 
Div.  561,  55  N.  Y.  Supp.  127. 

T  But  where  a  laborer  customarily  ate  his  dinner  in  the  master's  pump  house, 
•with  his  sanction,  not  having  time  to  go  home  to  dinner,  and  was  there  in- 
jured by  the  negligent  escape  of  steam,  the  master  was  held  liable.  Cleve- 
land, C.,  0.  &  St.  L.  R.  Co.  v.  Martin  (Ind.  App.)  39  N.  E.  759. 


§    37)  APPLIANCES    AND    PLACES    FOR    WORK.  9& 

conveyed.  Thus,  where  an  employe"  of  a  railroad  company  was  passed 
daily  over  the  road,  in  going  to  and  from  his  work,  free  of  charge, 
and  by  reason  of  a  defective  track  the  train  on  which  he  w7as  riding 
was  derailed,  it  was  held  that  while  he  was  so  riding  the  relation  of 
master  and  servant,  and  not  that  of  common  carrier  and  passenger, 
obtained.8  But  if  the  servant  pays  any  fare  for  such  transportation, 
even  by  a  deduction  from  his  wages,  he  has  all  the  rights  of  a  passen- 
ger.9 

Safe  Place  to  Work. 

The  general  duty  rests  upon  the  master  to  see  to  it  that  the  place 
in  which  the  servant  must  do  the  work  is  reasonably  safe  for  the 
purpose,10  and  in  general  to  provide  safe  means  of  access  and  de- 
parture.11 In  this  connection  is  included  the  duty  to  foresee  and 
provide  against  dangers  which,  in  the  exercise  of  proper  diligence, 

s  Seaver  v.  Railroad  Co.,  14  Gray  (Mass.)  466;  Moss  v.  Johnson,  22  111.  633; 
McGuirk  v.  Shattuck,  160  Mass.  45,  35  X.  E.  110. 

oO'Donnell  v.  Railroad  Co.,  59  Pa,  St  239;  Vick  v.  Railroad  Co.,  95  N. 
Y.  267.  In  the  latter  case  it  was  held  that,  in  the  circumstances,  the  deduc- 
tion did  not  amount  to  a  payment  of  fare. 

10  Fosburg  v.  Fuel  Co.,  93  Iowa,  54,  61  X.  W.  400.    Cf.  Oollins  v.  Crimmin* 
(Super.  N.  Y.)  31  N.  Y.  Supp.  860.    Also,  see  Blondin  v.  Quarry  Co.,  11  Ind. 
App.  395,  37  N.  E.  812,  affirmed  in  39  N.  E.  200;    Austin  v.  Railroad  Co.,  172 
Mass.  484,  52  N.  E.  527;    Callan  v.  Bull,  113  Cal.  593,  45  Pac,  1017;    Parlin 
&  Orendorff  Co.  v.  Finfrouck,  65  111.  App.  174;    Ryan  v.  Armour,  166  111.  568, 
47  X.  E.  60;    Barber  Asphalt  Pav.  Co.  v.  Odasz,  29  C.  C.  A.  631,  85  Fed.  754; 
Gibson  v.  Sullivan,  164  Mass.  557,  42  X.  E.  110;    Smith  v.  Transportation  Co., 
89  Hun,  588,  35  N.  Y.  Supp.  534;    Mc-Kenna  v.  Paper  Co.,  176  Pa.  St.  306,  35- 
Atl.  131;    Big  Creek  Stone  Co.  v.  Wolf,  138  Ind.  496,  38  X.  E.  52;    Gulf,  C.  & 
S.  F.  Ry.  Co.  v.  Jackson,  12  C.  C.  A.  507,  65  Fed.  48;  Curley  v.  Hoff  (X.  J.  Err.  &. 
App.)  42  Atl.  731;    San  Antonio  &  A.  P.  Ry.  Co.  v.  Brooking  (Tex.  Civ.  App.) 
51  S.  W.  537.    Illinois  Cent.  R.  Co.  v.  Gilbert,  51  111.  App.  404;  Mississippi  Cot- 
ton Oil  Co.  v.  Ellis,  72  Miss.  191,  17  South.  214;  McGonigle  v.  Canty,  80  Hun,  301, 
30  X.  Y.  Supp.  320;  Plank  v.  Railroad  Co.,  60  X.  Y.  607  (trench);  Wilson  v.  Lin- 
en Co..  50  Conn.  433  (defective  shafting);    Benzing  v.  Steinway,  101  N.  Y.  547, 
5  X.   E.  449;    Ferren  v.  Railroad  Co.,   143  Mass.   197,  9  X.  E.  608  (plaintiff 
crushed  between  car  and  building);    Sunney  v.  Holt,  15  Fed.  880  (unlighted 
hatchway);    Campbell  v.  Railroad  Co.  (Pa.  Sup.)  2  Atl.  489. 

11  Brydon  v.  Stewart,  2  Macq.  30;    Buzzell  v.  Manufacturing  Co.,  48  Me.  113;: 
Ferris  v.  Hernsheim  (La.)  24  South.  771;   Lauter  v.  Duckworth,  19  Ind.  App_ 
535,  48  X.  E.  864. 


94  LIABILITY    OF    MASTER    TO    SERVANT.  (Ch.   3 

might  have  been  anticipated.12  But,  like  all  general  propositions, 
this  must  be  interpreted  reasonably,  and  with  due  consideration  for 
the  character  of  the  work  to  be  done.  So,  in  tearing  down  an  old 
building,  the  master's  duty  is  not  to  furnish  a  safe  place  for  his 
servants  in  which  to  do  a  work  necessarily  dangerous,  but  consists  in 
not  subjecting  them  to  a  danger  of  which,  in  the  exercise  of  due  care, 
he,  but  not  they,  should  have  knowledge.13  And  in  general  it  may 
be  said  that  the  requirement  of  providing  a  safe  place  in  wrhich  to 
work  does  not  apply  to  cases  where  the  servant's  work  consists  in 
making  dangerous  places  or  things  safe; 14  or  where  the  business  or 
work  consists  in  or  necessitates  the  handling  of  unsafe  or  unsound 
things,  known  to  the  servant  to  be  so, — as  where  the  employment  con- 
sists in  moving  damaged  and  defective  cars  to  the  repair  shops.15 
Moreover,  if  the  place  or  appliance  is  put  to  an  unusual  test,16  or  a 
use  not  reasonably  to  be  anticipated,17  the  master  is  not  responsible 
for  resulting  injury. 

0 

Materials  and  Instruments. 

The  materials  and  instruments  with  which  the  servant  is  required 
to  labor  must  be  reasonably  safe  and  suited  to  the  employment,  due 
reference  being  had  to  the  character  of  the  work.18  The  servant  has 

12  Prendible  v.  Manufacturing  Co.,  160  Mass.  131,  35  N.  E.  675;  Denning 
v.  Gould,  157  Mass.  563,  32  N.  E.  862;  Cougle  v.  McKee,  151  Pa.  St.  602,  25 
Atl.  115;  Union  Pac.  Ey.  Co.  v.  Jarvi,  3  C.  C.  A.  433,  53  Fed.  65;  Lineoski  v. 
Coal  Co.,  157  Pa.  St  153,  27  Atl.  577;  Linton  Coal  &  Mining  Co.  v.  Persons, 
11  Ind.  App.  264,  39  N.  E.  214;  Union  Pac.  Ry.  Co.  v.  Erickson,  41  Neb.  1,  59 
N.  W.  347;  Muncie  Pulp  Co.  v.  Jones,  11  Ind.  App.  110,  38  N.  E.  547;  Hen- 
nessy  v.  City  of  Boston,  161  Mass.  502,  37  X.  E.  668;  Norfolk  &  W.  R.  Co. 
v.  Ward,  90  Va.  687,  19  S.  E.  849;  Indiana  Pipe  Line  &  Refining  Co.  v.  Neus- 
baum,  21  Ind.  App.  559,  52  N.  E.  471. 

is  Clark  v.  Liston,  54  111.  App.  578. 

i*  Fiualyson  v.  Milling  Co.,  14  C.  C.  A.  492,  67  Fed.  507.  See,  also,  Gulf, 
C.  &  S.  F.  Ry.  Co.  v.  Jackson,  12  C.  C.  A.  507,  65  Fed.  48. 

10  Flannagan  v.  Railway  Co.,  50  Wis.  462,  7  N.  W.  337;  on  former  appeal, 
45  Wis.  98;  Watson  v.  Railroad  Co.,  58  Tex.  434;  Yeaton  v.  Railroad  Corp., 
135  Mass.  418. 

i«  Preston  v.  Railway  Co.,  98  Mich.  128,  57  N.  W.  31. 

1 7  Richmond  &  D.  R.  Co.  v.  Dickey,  90  Ga.  491,  16  S.  E.  212. 

isBuzzell  v.  Manufacturing  Co.,  48  Me.  113;  Laning  v.  Railroad  Co.,  49  N. 
Y.  521;  Xordyke  &  Marrnon  Co.  v.  Van  Sant,  99  Ind.  188;  Chicago  &  X.  \V. 
R.  Co.  v.  Swett,  45  111.  197;  Benzing  v.  Steinway,  101  N.  Y.  547,  5  N.  E.  4.4 9; 


§    "7)  APPLIANCES    AND    PLACES    FOR    WORK.  95 

the  right  to  assume  that  all  reasonable  attention  will  be  given  by  his 
employer  to  his  safety,  so  that  he  will  not  be  needlessly  exposed  to 
risks  which  might  be  avoided  by  ordinary  care  and  precaution.19 
But  it  does  not  follow  that  a  tool  or  implement  which  has  become 
worn,  or  even  defective,  if  still  useful,  should  be  cast  aside  as  dan- 
gerous, unless  its  continued  employment  involves  an  apparent  risk. 
"Defect"  is  not  synonymous  with  "danger."  20  The  obligation  of  the 
master  to  supply  proper  materials  and  instruments  to  his  servants 
is,  as  in  other  matters,  largely  one  of  good  faith,  and  is,  in  every 
situation,  measured  by  the  character  and  necessary  exposures  of  the 
business,21  and  the  test  of  his  liability  would  seem  to  be,  not  wheth- 
er he  omitted  to  supply  something  or  do  something  which  he  could 
have  supplied  or  done,  and  which  would  have  lessened  the  danger 
or  averted  the  injury,  but  whether,  in  the  circumstances  and  the  ex- 
ercise of  ordinary  care  and  prudence,  he  failed  to  take  the  course 
or  precautions  which  a  prudent  and  careful  man  would  have  adopt- 
ed.22 

Inspecting  and  Keeping  in  Repair. 

Moreover,  it  is  the  general  duty  of  the  master  to  inspect  and  keep 
in  repair  and  suitable  condition  the  places  of  work,  instruments,  and 
appliances;  but  the  same  limitation  of  reasonableness  is  placed  upon 
the  degree  of  care  which  is  in  this  respect  required  of  the  master. 
And,  having  provided  a  reasonably  safe  and  proper  place  or  appliance, 

Collyer  v.  Railroad  Co.,  49  N.  J.  Law,  59.  6  Ati.  437;  Louisville  &  X.  R.  Co. 
v.  Semonis  (Ky.)  51  S.  W.  612;  Jones  v.  Railway  Co.  (La.)  26  South.  86;  But- 
ler v.  Railroad  Co.  (Sup.)  58  X.  Y.  Supp.  1061;  Green  v.  Sansom  (Fla.)  25 
South.  332;  Cleveland,  C.,  O.  &  St.  L.  Ry.  Co.  v.  Brown,  20  C.  0.  A.  147,  73 
Fed.  970;  Central  R.  Co.  of  Xew  Jersey  v.  Keegan,  160  U.  S.  259,  16  Sup.  Ct. 
•209;  Xorthern  Fac.  R.  Co.  v.  Peterson,  162  U.  S.  346,  16  Sup.  Ct.  843;  Same 
v.  Charless.  162  U.  S.  359,  16  Sup.  CL  848;  Hathaway  v.  Railway  Co.,  92 
Iowa,  337,  60  X.  W.  651;  French  v.  Aulls,  72  Hun,  442,  25  N.  Y.  Supp.  188. 

i»  Boyce  v.  Fitzpatrick,  80  Ind.  526;  Western  Coal  &  Mining  Co.  v.  Berber- 
ich,  36  C.  C.  A.  364,  94  Fed.  329;  McFarlan  Carriage  Co.  v.  Potter  (Ind.  Sup.) 
53  X.  E.  465. 

20  Little  Rock  &  F.  S.  R.  Co.  v.  Duffey,  35  Ark.  602;    Xelson  v.  Car- Wheel 
Co.,  29  Fed.  840. 

21  Devitt  v.  Railroad  Co.,  50  Mo.  302;   Wonder  v.  Railroad  Co.,  32  Md.  411; 
Myers  v.  W.  C.  De  Pauw  Co..  138  Ind.  590.  38  X.  E.  37. 

22  Leonard  Y.  Collins,  70  X.  Y.  90;    Carroll  v.  Telegraph  Co.,  160  Mass.  152, 
35  X.  E.  45G. 


96  LIABILITY    OF    MASTER    TO    SERVANT.  (Ch.   3 

he  has  a  right  to  assume  that  it  will  be  used  intelligently  and  care- 
fully, and  he  need  not  constantly  inspect  it  to  see  that  it  does  not 
become  unsafe  through  misuse  or  carelessness;  as  in  the  case  of  a 
scaffold  the  boards  of  which  are  necessarily  movable,  the  master 
has  the  right  to  assume  that  they  will  be  properly  moved  and  ad- 
justed, as  occasion  may  require,  and  kept  in  place  by  the  servant, 
and,  if  the  servant  allows  them  to  become  so  misplaced  that  in  walk- 
ing over  them  they  give  way,  and  he  is  injured,  he  cannot  recover.23 
But  where  one  has  been  injured  through  a  defect  in  an  appliance 
which  could  have  been  discovered  and  remedied  by  proper  inspection 
and  care,  it  is  no  defense  to  an  action  based  thereon  that  the  master 
was  not  in  fact  informed  of  the  defect  or  danger.2*  And  the  duty 
of  inspection  and  care  applies  equally  to  places  and  instrumentalities 
which  the  servant  uses  in  the  course  of  his  employment,  no  matter 
whether  they  are  the  actual  property  of  the  master  or  not;  as  in 
the  case  of  a  railroad  employe"  who  is  required  to  handle  cars  not 
belonging  to  the  employing  company,25  or  to  run  the  cars  of  his  own 
employer  over  the  tracks  of  another  company.26 

as  Jennings  v.  Iron  Bay  Co.,  47  Minn.  Ill,  49  N,  W.  685;  Wachsmuth  v. 
Crane  Co.  (Mich.)  76  N.  W.  497;  Coyle  v.  Iron  Co.  (N.  J.  Sup.)  41  Atl.  680; 
Miller  v.  Railroad  Co.,  21  App.  Div.  45,  47  N.  Y.  Supp.  285. 

24Benzing  v.  Steinway,  101  N.  Y.  547,  5  N.  E.  449;  McFarlan  Carriage 
Co.  v.  Potter  (Ind.  Sup.)  53  X.  E.  465;  Union  Show  Case  Co.  v.  Blindauer, 
75  111.  App.  358;  Cleveland,  C.,  C.  &  St  L.  Ry.  Co.  v.  Ward,  147  Ind.  256,  45 
X.  E.  325,  and  46  N.  E.  462. 

25  Gottlieb  v.  Railroad  Co.,  29  Hun  (X.  Y.)  637,  affirmed  in  100  N.  Y.  462. 
3  X.  E.  344;  O'Neil  v.  Railway  Co.,  9  Fed.  337.  But  see,  also,  Michigan  Cent. 
R.  Co.  v.  Smithson,  45  Mich.  212,  7  X.  W.  791;  Baldwin  v.  Railroad  Co., 
50  Iowa,  680;  Ballon  v.  Railway  Co.,  54  Wis.  257,  11  X.  W.  559;  Mackin  v. 
Railroad  Co.,  135  Mass.  201;  Baltimore  &  P.  R.  Co.  v.  Mackey,  157  U.  S.  72,  15 
Sup.  Ct.  491;  Dooner  v.  Canal  Co.,  164  Pa,  St.  17,  30  Atl.  269;  Atchison,  T. 
&  S.  F.  R.  Co.  v.  Myers,  11  C.  C.  A.  439,  63  Fed.  793;  Union  Stock-Yards 
Co.  v.  Goodwin  (Xeb.)  77  N.  W.  357. 

so  Stetler  v.  Railway  Ckx,  46  Wis.  497,  1  X.  W.  112;  Id.,  49  Wis.  609,  6  N. 
W.  303. 


§    38)  SELECTING    AND    RETAINING    SERVANTS.  97 


SAME— SELECTING  AND  RETAINING  SERVANTS. 

38.  It  is  the  duty  of  the  master  to  exercise  ordinary  care 
in  the  selection  and  retention  of  his  servants,  -with 
a  view  to  employing  a  sufficient  number,  and  only 
such  as  are  fairly  skillful  and  competent,  to  the  end 
that  co-employes  may  not  be  endangered  in  the  per- 
formance of  their  duty  by  the  conduct  of  persons 
•who  are  not  possessed  of  these  reasonable  qualifi- 
cations.1 

If  the  master  fails  in  the  performance  of  this  duty,  he  is  liable 
for  any  injury  to  his  servant  resulting  therefrom;  that  is  to  say,  if 
the  negligence,  unskillfulness,  or  incompetency  of  a  co-employe",  such 
as  might  have  been  reasonably  anticipated  or  discovered  by  ordinary 
care  on  the  part  of  the  master,  is  the  cause  of  injury  to  a  servant, 
he  can  recover  therefor  against  the  employer.2  This  liability  is 
based  on  the  master's  supposed  knowledge  of  the  servant's  incom- 
petency, or,  what  amounts  to  the  same  thing,  the  means  of  knowl- 
edge in  the  exercise  of  ordinary  care;  and  it  follows,  of  course,  that 
actual  knowledge  of  incompetency,  although  increasing  the  respon- 
sibility, is  not  essential.3 

-  §  38.  i  Wabash  Ry.  Co.  v.  McDaniels,  107  U.  S.  454,  2  Sup.  Ct  932;  Cur- 
ley  v.  Harris,  11  Allen  (Mass.)  112,  121;  Chicago  &  G.  E.  Ry.  Co.  v.  Harney, 
28  Ind.  28;  Laning  v.  Railroad  Co.,  49  X.  Y.  521;  Crew  v.  Railway  Co.,  20 
Fed.  87;  Porter  v.  Machine  Co.,  94  Term.  370,  29  S.  W.  227;  McPhee  v. 
Scully,  163  Mass.  216,  39  N.  E.  1007  (fellow  servant  obviously  drunk  at  time 
defendant  ordered  him  to  work);  Norfolk  &  W.  R.  Co.  v.  Xuckol's  Adm'r,  91 
Va.  193,  21  S.  E.  342  (duty  of  master  to  keep  himself  informed  of  servant's 
competency);  Jungnitsch  v.  Iron  Co.,  105  Mich.  270,  63  N.  W.  296  (only  rea- 
sonable care  required,  and  not  such  care  as  will  reduce  danger  to  a  minimum). 

2  Faulkner  v.  Railway  Co.,  49  Barb.  (N.  Y.)  324;  Chicago  &  N.  W.  Ry. 
Co.  v.  Swett,  45  111.  197;  Chicago  &  G.  E.  Ry.  Co.  v.  Harney,  28  Ind.  28; 
Kordyke  &  Marmon  Co.  v.  Van  Sant,  99  Ind.  188;  Blake  v.  Railroad  Co.,  70 
Me.  60;  Mann  v.  Canal  Co.,  91  X.  Y.  495;  Huntsinger  v.  Trexler,  181  Pa.  St 
497,  37  Atl.  574;  Murphy  v.  Hughes  (Del.  Super.)  40  Atl.  187;  Wright  v. 
Railway  Co.,  123  N.  C.  280,  31  S.  E.  652. 

s  Laning  v.  Radlroad  Co.,  49  X.  Y.  521;    Oilman  v.  Railroad  Corp.,  10  Allen 
(Mass.)  233;   Huntingdon  &  B.  T.  R.  Co.  v.  Decker,  Si  Pa.  St.  419. 
BAR.XEG.— 7 


98  LIABILITY    OF    MASTER    TO    SERVANT.  (Cll.   3 

The  mere  fact  of  incompetency  is  not  sufficient  to  establish  the 
responsibility  of  the  master.  In  some  cases  the  proof  of  incompe- 
tency may  be  of  such  a  nature  as  to  raise  an  inference  of  knowledge 
sufficient  to  sustain  a  verdict,  although  it  would  not  raise  a  legal 
presumption  of  notice.  Thus,  in  an  action  by  a  coal  miner  for  in- 
juries sustained  while  being  lowered  into  a  mine,  proof  that  the 
operating  engineer  had  theretofore  always  been  a  mule  driver  or 
manual  laborer  was  held  to  be  merely  evidence  of  negligence  in  his 
selection  for  the  consideration  of  the  jury.4  But,  apart  from  all 
question  of  notice,  it  should  be  observed  that  the  individual  negligent 
act  of  the  fellow  servant  which  caused  the  injury  complained  of  is 
not  in  itself  sufficient  evidence  of  the  fact  of  incompetency.5 

The  number  of  employe's,  also,  should  be  sufficient  to  do  the  work 
with  reasonably  safety,  and  to  this  end  the  master  must  exercise  the 
same  reasonable  degree  of  care  to  hire  and  maintain  a  fairly  ade- 
quate force.6  And  this  duty  is  not  discharged  by  the  mere  provision 
of  a  sufficient  number  of  men  for  the  manual  labor  to  be  performed. 
It  may  also  require  the  stationing  of  lookouts,7  patrols,  and  watch- 
men ; 8  in  short,  there  must  be  servants  enough,  not  only  for  or- 
dinary, but  for  extraordinary,  occasions,  and  it  will  not  do  to  say 
that  "one  man  cannot  be  in  two  places  at  one  time."  There  must  be 
"a  man  for  every  place,  as  need  may  be."9 

<  Joeh  v.  Dankwardt,  85  111.  331;  Bunnell  v.  Railway  Co.,  29  Minn.  305,  13 
N.  W.  129;  no  presumption,  Murphy  v.  Pollock,  15  Ir.  C.  L.  224;  Wright  v. 
Railroad  Co.,  25  N.  Y.  562;  Harvey  v.  Same,  88  N.  Y.  481;  O'Loughlin  v. 
Same,  87  Hun,  538,  34  N.  Y.  Supp.  297. 

s  McCarthy  v.  Shipowners'  Co.,  L.  R.  Ir.  10  Exch.  384;  Hathaway  v.  Rail- 
way Co.,  92  Iowa,  337,  60  N.  W.  651;  liut  a  former  commission  of  a  similarly 
incompetent  act,  if  known  to  the  master,  is  competent  evidence  of  notice. 
Wabash  Western  Ry.  Co.  v.  Brow,  13  C.  C.  A.  222,  65  Fed.  941.  On  proof  of 
incompetency,  see  post,  p.  100. 

s  Flike  v.  Railroad  Co,,  53  X.  Y.  549;  Booth  v.  Same,  73  N.  Y.  38.  See, 
also,  Whitt.  Smith,  Neg.  p.  125,  etc.,  and  cases  cited;  McMullen  v.  Railway 
Co.,  1  Mo.  App.  Rep'r,  230. 

T  Burlington  &  M.  R.  Co.  v.  Crockett,  19  Neb.  138,  26  N.  W.  921,  24  Am.  & 
Eng.  R.  Gas.  390. 

s  Hardy  v.  Railway  Co.,  76  X.  C.  5  (washout,  and  failure  of  railroad  to 
have  a  man  at  the  break  to  warn  the  train). 

o  Read,  J.,  in  Hardy  v.  Railway  Co.,  76  X.  C.  5, 


§    38)  SELECTING    AND    RETAINING    SERVANTS.  99 

If  the  injured  sen-ant  knew  of  the  incompetency,10  or  had  oppor- 
tunities of  knowledge  equal  to  those  of  the  master,11  he  cannot  re- 
cover. 

Evidence* 

Evidence  of  general  reputation  for  incompetency  is  admissible  as 
tending  to  show  notice; 12  as  is  also  the  previous  record,  when  ob- 
tainable by  the  master.13  The  decided  weight  of  authority  supports 
the  proposition  that  the  ultimate  fact  of  unfltness  cannot  be  estab- 
lished by  proof  of  general  reputation  for  incompetency.14  Keputa- 
tion  is  but  a  suggestion  of  what  actual  investigation  will  disclose. 
If  the  disclosed  fact  does  not  accord  with  the  reputation,  the  latter 
cannot  be  proof  of  a  fact  which  exists  only  as  a  rumor.  Suppose 
.a  banker  is  reputed  to  be  worth  a  million  dollars.  Actual  investiga- 
tion discloses  that  he  is,  in  fact,  insolvent.  Is  proof  of  his  general 
reputation  competent  to  show  his  solvency?  In  Gier  v.  Los  An- 
geles Consol.  Electric  Ky.  Co.15  the  court  says:  "It  becomes  ap- 
parent, therefore,  that,  as  evidence  of  reputation  becomes  necessary 
only  where  there  is  an  inability  to  furnish  direct  proof  of  the  em- 
ployer's knowledge,  so  it  is  proper  only  after  the  establishment  of  the 

10  Parker  v.  Sample,  11  Ind.  App.  688,  39  N.  E.  173. 

11  Bonnet  v.  Railway  Co.  (Tex.  Civ.  App.)  31  S.  W.  525. 

12  Driscoll  v.  City  of  Fall  River,  163  Mass.  105,  39  N.  E.  1003;    Park  v. 
Railroad   Co.,   85   Hun,    184,   32  N.  Y.  Supp.  482;     Norfolk   &   W.    R.    Co.    v. 
Hoover,  79  Md.  253,  29  Atl.  994;    Monahan  v.  City  of  Worcester,  150  Mass. 
439,  23  N.  E.  228;    Morrow  v.  Railway  Co.  (Minn.)  73  N.  W.  973;    Park  v. 
Railroad  Co.,  155  X.  Y.  215,  49  X.  E.  674;    Galveston,  H.  &  S.  A.  Ry.  v.  Hen- 
ning  (Tex.  Civ.  App.)  39  S.  W.  302;    Stoll  v.  Mining  Co.  (Utah)  57  Pac.  295. 

13  Baltimore  &  O.  R.  Co.  v.  Camp,  13  C.  C.  A.  233,  65  Fed.  952. 

14  Gier  v.  Railway  Co.,  108  Cal.  129,  41  Pac.  22;    Gilman  v.  Railroad  Co., 
13  Allen  (Mass.)  433.     In  the  latter  case  the  court  says:   "It  is  indeed  objected 
that  the  admission  of  evidence  that  Shute  had  the  general  reputation  of  being 
intemperate,  was  erroneous.     But  such  evidence  was  admitted,  as  the  report 
expressly  states,  not  for  the  purpose  of  showing  that  he  was  intemperate, 
but  for  the  purpose  of  showing  that  his  habitual  intemperance,  which  there 
was   other   evidence  tending  to  prove,   was  well  known   in   the  community. 
This  fact  was  competent  to  show  that  the  defendants,  if  they  used  due  care, 
must  have  known  that  he  was  habitually  intemperate,  and  therefore  an  unsuit- 
able servant  to  be  employed  by  them."    And  see  Driscoll  v.  City  of  Fall  River, 
103  Mass.  105,  39  X.  E.  1003. 

is  108  Cal.  129,  41  Pac.  22,  at  page  24. 


100  LIABILITY    OF   MASTER   TO   SERVANT.  (Ch.   5 

fact  that  the  employe"  is  in  truth  an  unfit  person.  And  reputation 
is  not  proof  of  that  fact  A  man's  reputation  may  be  at  variance 
with  his  character  or  in  accord  with  it.  He  may  be  reputed  reck- 
less, and  in  fact  be  careful.  An  employer  is  not  bound  to  discharge 
an  employ^  merely  because  of  his  ill  repute,  but  he  is  culpable  if  he 
retains  in  his  employ  a  servant  with  a  bad  reputation,  well  founded. 
So  it  is  that  evidence  of  individual  acts  evincing  negligence  or  in- 
competency  is  admissible."  And  in  a  Massachusetts  case  the  court 
says:  "A  general  reputation  regarding  the  incompetency  of  a  serv- 
ant is  admissible  on  the  ground  that  it  furnished  some  reason  to- 
believe  that,  if  a  master  had  exercised  due  care,  he  might  have 
learned  or  heard  of  the  incompetency."  The  conclusion,  supported 
by  the  great  weight  of  authority,  is  that  the  fact  of  incompetency 
can  be  established  only  by  specific  acts.18 

Incompetency  not  Proof  of  Negligence. 

Incompetency  of  the  servant  and  his  prior  acts  in  that  regard  are 
not  admissible  in  proof  of  his  negligence  at  the  time  of  the  injury 
complained  of.  In  Cunningham  v.  Los  Angeles  Ky.  Co.17  the  law 

i«  Driscoll  v.  City  of  Fall  River,  163  Mass.  105,  39  N.  E.  1003;  Cosgrove  v. 
Pitman,  103  Cal.  274,  37  Pac.  232;  Baulec  v.  Railroad  Co.,  59  N.  Y.  356;  Davis 
v.  Railroad  Co.,  20  Mich.  105;  Norfolk  &  W.  R.  Co.  v.  Hoover,  79  Md.  253, 
29  Atl.  994;  Monahan  v.  City  of  Worcester,  150  Mass.  439,  23  N.  E.  228;. 
Lake  Shore  &  M.  S.  Ry.  Co.  v.  Stupak,  123  Ind.  210,  229,  23  N.  E.  246. 

»» 115  Cal.  561,  47  Pac.  452;  Warner  v.  Railway  Co.,  44  N.  Y.  465;  Mc- 
Donald v.  Savoy,  110  Mass.  49;  Maguire  v.  Railroad  Co.,  115  Mass.  239;  Whit- 
ney v.  Gross,  140  Mass.  232,  5  N.  E.  619;  Boggs  v.  Lynch,  22  Mo.  563; 
Thompson  v.  Bowie,  4  Wall.  463;  Morris  v.  Town  of  East  Haven,  41  Conn. 
252;  Tenney  v.  Tuttle,  1  Allen  (Mass.)  185;  Bryant  v.  Railroad  Co.,  56  Vt.  710; 
Dunham  v.  Rackliff,  71  Me.  345;  Central  Railroad  &  Banking  Co.  v.  Roach, 
64  Ga.  635;  Jagger  v.  Bank.  53  Minn.  386,  55  X.  W.  545.  In  Baltimore  &  O. 
R.  Co.  v.  Colvin,  118  Pa.  St.  230,  12  Atl.  337,  the  court  says:  "The  general 
reputation  of  a  flagman  at  a  railroad  crossing  for  carelessness  is  inadmissible 
in  evidence  to  prove  his  carelessness  on  a  particular  occasion.  *  *  *  It 
was  also  error  to  admit  the  evidence  offered  to  show  that  the  flagman  had 
the  reputation  of  being  a  careless  and  incompetent  person  for  the  place. 
He  may  have  had  a  bad  reputation,  and  yet  have  discharged  his  duty  faith- 
fully on  this  occasion.  The  question  was,  what  did  he  do?  How  did  he 
discharge  his  duty  at  this  time?  What  he  had  done  or  left  undone  on  former 
occasions  was  wholly  immaterial  and  irrelevant,  and  the  only  effect  of  the 
admission  of  the  evidence  objected  to  was  to  excite  the  prejudices  of  the  jury 
against  the  flagman  and  his  employer,  and  so  indirectly  and  improperly  iru- 


§    39)  RULES    AND    REGULATIONS.  101 

on  this  point  is  thus  tersely  stated  in  the  opinion  of  the  court:  "De- 
fendant was  responsible  to  plaintiff  for  a  want  of  ordinary  care  only, 
and  whether  it  was  in  the  exercise  of  such  care  was  to  be  deter- 
mined from  a  consideration  of  what  actually  occurred  at  the  time 
of  the  alleged  negligent  act,  regardless  of  any  fact  affecting  the  gen- 
eral character  of  the  servant  for  skill  or  proficiency  in  the  discharge 
of  his  duties.  The  question  was,  did  the  servant  exercise  the  ordi- 
nary care  to  avoid  the  injury?  If  he  did,  the  plaintiff  could  not 
recover,  no  matter  how  wanting  the  servant  may  have  been  in  gen- 
eral competency;  while,  if  he  did  not  exercise  such  care,  plaintiff 
was  entitled  to  recover,  even  if  the  servant  possessed  the  utmost 
degree  of  efficiency  and  skill  in  the  performance  of  his  duty.  The 
sole  question,  therefore,  was,  what  was  the  conduct  of  the  servant 
at  the  time?  and  this  was  to  be  unembarrassed  by  any  considera- 
tion of  his  general  qualifications."  Where,  therefore,  the  com- 
petency of  the  servant  is  not  in  issue,  this  class  of  testimony  is  in- 
admissible for  any  purpose;  and,  where  the  competency  of  the  serv- 
ant is  in  issue,  evidence  of  this  kind,  even  if  properly  introduced,  can- 
not be  made  the  basis  of  improper  argument  by  counsel  to  show 
negligence  at  the  time  of  the  injury. 

SAME— RULES  AND  REGULATIONS. 

39.  For  the  protection  of  his  servants,  the  master  is  fur- 
ther obligated 

(a)  To  prescribe  and  publish  suitable  rules,  and 

(b)  To  warn  and  instruct  his  servants. 

peach  his  credit,  and  injure  the  defendant."  In  Fonda  v.  Railway  Co.  (Minn.) 
74  X.  W.  166,  at  page  168,  the  action  being  by  a  stranger,  the  court  says: 
"The  defendant  is  liable,  if  at  all,  for  the  acts  of  its  servant  upon  the  doc- 
trine of  respondeat  superior.  If  the  motorman  was  negligent  upon  this  occa- 
sion, the  defendant  is  liable,  no  matter  how  competent  he  was,  or  how  habit- 
ually careful  he  had  been,  on  other  occasions.  On  the  other  hand,  if  he  was 
not  negligent  on  this  occasion,  the  defendant  is  not  liable,  notwithstanding 
that  he  may  have  been  incompetent  or  habitually  careless  on  former  occa- 
sions. *  *  *  If  the  plaintiff  could  offer  testimony  as  to  the  general  incom- 
petency  or  as  to  prior  negligent  acts  or  omissions  of  the  motorman,  then,  with 
equal  propriety,  the  defendant,  upon  the  issue  of  contributory  negligence,  might 
offer  evidence  of  plaintiffs  general  carelessness,  or  of  his  negligent  acts  on 
other  occasions." 


102  LIABILITY    OF    MASTER    TO    SERVANT.  (Ch.   3 

40.  PROMULGATION  OF  RULES— It  is  the  duty  of  the 
master  to  prescribe  and  publish  such  suitable  rules 
as  the  circumstances  may  reasonably  require  for 
the  proper  and  safe  transaction  of  the  business.1 

This  duty  of  the  master  to  protect  his  servants  by  making  suita- 
ble rules  for  the  safe  management  of  the  business  becomes  more 
imperative  in  proportion  to  the  danger  and  complication  of  the 
work;2  but  whether  any  rule  at  all  is  required  in  the  exercise  of 
ordinary  care,  in  a  particular  case,  or  whether  the  one  in  effect  at 
the  time  of  the  injury  was  reasonably  sufficient,  are  generally  ques- 
tions of  fact  for  the  jury.3  The  rules  must  also  be  sufficiently  pub- 
lished and  brought  to  the  attention  of  the  workmen.4  And  this  is 
especially  true  regarding  changes  in  established  rules,  as  where 
an  accommodation  train  was  altered  to  an  express,  and  the  running 
time  changed,  without  notice  to  an  employe",  who  was  run  over  and 

§§  39-40.  i  Lake  Shore  &  M.  S.  Ry.  Co.  v.  La  valley,  36  Ohio  St.  221;  Pitts- 
burg,  Ft.  W.  &  C.  Ry.  Co.  v.  Powers,  74  111.  341;  and  generally,  Berrigan  v. 
Railroad  Co.,  131  N.  Y.  582,  30  N.  E.  57;  Richmond  &  D.  R.  Co.  v.  Williams, 
88  Ga.  16,  14  S.  E.  120;  Murphy  v.  Hughes  (Del.  Super.)  40  Atl.  187;  Abel  v. 
Canal  Co.,  128  N.  Y.  662,  28  N.  E.  663;  Morgan  v.  Iron  Co.,  133  N.  Y.  666, 
31  N.  E.  234;  Gordy  v.  Railroad  Co.,  75  Md.  297,  23  Atl.  607.  The  reasonable- 
ness of  such  rule  is  a  question  of  law.  Kansas  City,  Ft.  S.  &  M.  Ry.  Co.  v. 
Hammond,  58  Ark.  324,  24  S.  W.  723;  Little  Rock  &  M.  R.  Co.  v.  Barry,  28 
C.  C.  A.  644,  84  Fed.  944;  Nolan  v.  Railroad  Co.,  70  Conn.  159,  39  Atl.  115; 
Willis  v.  Railroad  Co.,  122  N.  C.  905,  29  S.  E.  941.  The  master  must  exercise 
such  supervision  as  to  have  reason  to  believe  that  the  business  is  conducted 
in  pursuance  to  the  rule.  Warn  v.  Railroad  Co.,  80  Hun,  71,  29  N.  Y.  Supp. 
897.  Officers  charged  with  notice  of  customary  breach.  Lowe  v.  Railway 
Co.,  89  Iowa,  420,  56  N.  W.  519. 

2  Slater  v.  Jewett,  85  N.  Y.  61;  Sheehan  v.  Railroad  Co.,  91  N.  Y.  332; 
Dana  v.  Railroad  Co.,  92  N.  Y.  639. 

s  Kain  v.  Smith,  80  N.  Y.  458;  Abel  v.  Canal  Co.,  103  N.  Y.  581,  9  N.  E. 
325;  Ely  v.  Railroad  Co.,  88  Hun,  323,  34  N.  Y.  Supp.  739;  Eastwood  v.  Min- 
ing Co.,  86  Hun,  91,  34  N.  Y.  Supp.  196;  Moore  Lime  Co.  v.  Richardson's 
Adm'r,  95  Va.  326,  28  S.  E.  334. 

*  Haynes  v.  Railroad  Co.,  3  Cold.  (Tenn.)  222;  Bradley  v.  Railroad  Co.,  62 
N.  Y.  99;  Chicago  &  N.  W.  R.  Co.  v.  Taylor,  69  111.  461;  Chicago,  B.  &  Q. 
R.  Co.  v.  Oyster  (Neb.)  78  N.  W.  359;  Whalen  v.  Railroad  Co.,  114  Mich. 
512,  72  N.  W.  323.  Rules  for  making  "flying  switches,"  excessive  speed  of 
locomotives  running  backwards,  Cooper  v.  Railroad  Co.,  44  Iowa,  134. 


§    40)  PROMULGATION    OF    RULES.  103 

killed.5  And  the  master  must  also  exercise  ordinary  care  to  see  that 
the  rules  and  regulations  are  enforced.  So,  track  repairers  have  a 
right  to  rely  on  the  customary  signals  being  given  by  approaching 
trains.6  An  accepted  custom,  uniformly  acquiesced  in,  becomes  a 
rule,  and  is  as  much  entitled  to  be  relied  on  as  though  formally 
promulgated, — as  that  the  person  coupling  cars  should  give  the  sig- 
nals for  the  movement  of  the  train.7  But  whether  or  not  certain 
rules  have  been  established  is  a  question  for  the  jury.8  As  a  mat- 
ter of  course,  an  arbitrary  rule,  framed  for  the  convenience  and 
benefit  of  the  master,  cannot  relieve  him  of  a  responsibility  which 
he  is  bound  to  carry, — as  that  of  inspecting  appliances.  So,  one  re- 
quiring brakemen  to  examine  brakes  before  leaving  a  terminal  sta- 
tion, and  report  any  found  out  of  order.9  If  a  servant  knowingly 
violates  reasonable  rules,  or,  knowing  of  their  habitual  violation 
by  fellow  servants,  fails  to  make  objection,  or  report  the  same,  such 
conduct  may  constitute  contributory  negligence; 10  but  the  violation 
may  be  so  universal  as  to  constitute  a  custom,  and,  if  known  to  the 
master,  will  not  prevent  recovery.11  If  the  servant  bases  his  right 
to  recover  on  the  failure  of  the  employer  to  prescribe  and  enforce 
suitable  rules,  such  failure  must  be  affirmatively  proved.12 

s  Baltimore  &  O.  R.  Co.  v.  Whittington's  Adm'r,  30  Grat.  (Va.)  805. 

e  Erickson  v.  Railroad  Co.,  41  Minn.  500,  43  N.  W.  332;  Moran  v.  Railway 
Co.,  48  Minn.  46.  50  N.  W.  930;  Schulz.  v.  Railway  Co.,  57  Minn.  271,  59 
X.  W.  19L';  Anderson  v.  Mill  Co.,  42  Minn.  424,  44  N.  W.  315;  Northern 
Pac.  R.  Co.  v.  Charless,  7  U.  S.  App.  359,  2  C.  C.  A.  380,  and  51  Fed.  562; 
Alabama  G.  S.  R.  Co.  v.  Fulghum,  94  Ga.  571,  19  S.  E.  981.  Rules  not  required 
by  nature  of  business,  Texas  &  N.  O.  Ry.  Co.  v.  Echols,  87  Tex.  339,  27  S.  W. 
60,  28  S.  W.  517. 

T  Kudik  v.  Railroad  Co.,  78  Hun.  492,  29  N.  Y.  Supp.  533;  Rutledge  v.  Rail- 
way Co.,  123  Mo.  121,  24  S.  W.  1053.  affirmed  27  S.  W.  327. 

s  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Finley,  11  Tex.  Civ.  App.  64,  32  S.  W.  51. 

9  Louisville  &  X.  R.  Co.  v.  Orr,  91  Ala.  548,  8  South.  360;    Kerns  v.  Railway 
Co.,  94  Iowa,  121,  62  X.  W.  692.     But  see  Louisville,  E.  &  St.  L.  Consol.  R. 
Co.  v.  Utz,  133  Ind.  265,  32  X.  E.  881. 

10  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Knittal,  33  Ohio  St  468;    Drake  v.  Rail- 
road Co.,  SO  Hun,  490,  30  X.  Y.   Supp.  671. 

11  Strong  v.  Railway  Co.,  94  Iowa.  380,  62  N.  W.   799;    Chicago  &  W.  I. 
R.  Co.  v.  Flynn,  154  111.  448,  40  X.  E.  332;   54  111.  App.  387,  affirmed. 

12  Eose  v.  Railroad  Co.,  58  X.,Y.  217;  Texas  &  N.  O.  R.  Co.  v.  Tatrnan,  10 
Tex.  Civ.  App.  434,  31  S.  W.  333. 


104  LIABILITY    OF    MASTER    TO    SERVANT.  (Ch.   3 

Private  Rules  as  Affecting  Strangers. 

Although  falling  under  another  division  of  this  subject,  it  is  proper 
to  call  attention  at  this  time  to  the  fact  that  the  infraction  of  pri- 
vate rules  of  the  master,  adopted  for  the  benefit  of  his  employe's, 
and  the  safe  conduct  of  his  business,  is  not  admissible  in  evidence 
in  an  action  by  a  stranger,13  unless  where  the  rules  have  been  so 
long  in  use  as  to  establish  a  custom,  or  where  the  stranger  plain- 
tiff, having  knowledge  of  them,  relied  upon  them.14  The  degree  of 
care  required  in  any  particular  case  is  determined  by  the  common 
law,  and  is  not  affected  by  a  city  ordinance  requiring  street  cars, 
in  certain  cases,  to  be  stopped  "in  the  shortest  time  possible." 15 
And  so  the  degree  of  care  can  in  no,  case  be  determined  by  the  pri- 

i«  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Berkey,  136  Ind.  181,  35  N.  E.  3;  Louis- 
ville, E.  &  St.  L.  Consol.  R.  Co.  v.  Utz,  133  Ind.  268,  32  N.  E.  881;  Central 
Railroad  &  Banking  Co.  v.  Ryles,  84  Ga.  420,  11  S.  E.  499. 

i*  Larson  v.  Ring,  43  Minn.  88,  44  N.  W.  1078;  Same  v.  Railroad  Co., 
43  Minn.  423,  45  N.  W.  1096;  Fonda  v.  Railway  Co.,  71  Minn.  438,  74  N.  W. 
166. 

10  Fath  v.  Railway  Co.,  39  Mo.  App.  447.  In  this  case  the  court  said: 
"We  are  inclined  to  agree  with  the  defendant  on  the  second  proposition.  The 
municipal  assembly,  in  paragraph  4,  not  only  undertook  to  regulate  the  run- 
ning of  street  cars,  but  endeavored  to  legislate  on  the  subject  of  diligence  as 
an  abstract  question.  The  question  is  whether  the  ordinance  is  valid  for  the 
purpose  of  establishing  a  different  degree  of  care  to  be  exercised  by  the  de- 
fendant than  that  exacted  by  the  common  law.  It  must  be  conceded  that  the 
city  council  had  the  right  to  prescribe  all  reasonable  rules  and  regulations  for 
the  government  of  street  railways,  and  under  the  power  thus  conferred  its 
ordinances  regulating  the  speed  of  cars,  the  motor  power  to  be  used,  the 
construction  of  the  cars,  and  other  regulations,  must  be  upheld.  But  beyond 
this  it  cannot  go.  It  cannot  prescribe  such  duties,  and  then  determine  the 
degree  of  care  to  be  used  in  their  performance.  In  controversies  between 
third  persons  and  a  street  railway,  growing  out  of  an  alleged  failure  to  prop- 
erly observe  such  regulation,  the  degree  of  diligence  to  be  exercised  by  the 
defendant  in  the  discharge  of  the  duty  imposed  must  be  determined  by  the 
application  of  common-law  principles,  and  not  by  another  and  different  rule 
provided  in  the  ordinance.  In  the  case  under  consideration  the  ordinance  re- 
quires the  car  to  be  stopped  'in  the  shortest  space  and  time  possible.'  In  the 
discharge  of  the  duty  imposed  the  ordinance  demands  the  exercise  of  the 
'greatest  possible  diligence,'  whereas  the  general  law  exacts  reasonable  care. 
To  this  extent  the  ordinance  in  question  is  inconsistent  with  the  law  of  the 
state." 


§    41)  WARNING    AND    INSTRUCTING    SERVANTS.  105 

rate  rules  adopted  by  the  master,  which  may  involve  a  greater  or 
less  degree  of  prudence  than  that  established  by  the  common  law. 

41.  WARNING  AND  INSTRUCTING  SERVANTS— Rea- 
sonable precaution  for  the  safety  of  his  servants 
further  requires  the  master  to  point  out  such  dan- 
gers as  are  not  readily  discoverable  by  the  servant 
in  the  exercise  of  ordinary  care. 

The  converse  of  this  proposition  is  equally  true, — that  the  master 
need  not  warn  the  servant  of  those  ordinary  hazards  which  are  pat- 
ent to  the  average  workman,  or  discoverable  in  the  exercise  of  ordi- 
nary intelligence  and  care.  Thus,  it  is  obviously  unnecessary  to 
warn  a  laborer  who  is  undermining  a  bank  that  the  force  of  gravity 
will,  sooner  or  later,  cause  the  surface  crust  to  break  off  and  fall; 1 
but  it  would  be  otherwise  if  some  unusual  element,  such  as 'the  ex- 
treme friability  of  the  soil,  made  the  danger  of  caving  greater  than 
was  apparent,  and  this  fact  was  known  to  the  master.2  And  the 
master  may  rightfully  assume  that  the  servant  possesses  such  knowl- 
edge, experience,  and  judgment  as  is  ordinarily  found  in  workmen 
of  his  grade,  and  that  he  is  reasonably  skilled  in  what  he  under- 
takes to  do.  Thus,  where  one  who  was  engaged  to  fill  defendant's 
ice  houses,  being  ordered  to  couple  cars,  in  which  he  was  unskilled, 
went  about  the  work  without  objection,  and  so  awkwardly  that  he 
was  injured,  it  was  held  that  he  could  not  recover.3  But  if  laborers 

§  41.  i  Griffin  v.  Railway  Co.,  124  Ind.  326,  24  N.  E.  888;  Swanson  v.  City 
of  Lafayette,  134  Ind.  625,  33  N.  E.  1033.  See,  also,  Fones  v.  Phillips,  39 
Ark.  17;  Keats  v.  Machine  Co.,  13  C.  C.  A.  221,  65  Fed.  940;  McCarthy  v. 
Mulgrew  (Iowa)  77  N.  W.  527;  Gleason  v.  Smith  (Mass.)  51  N.  E.  460;  Ford 
v.  Pulp  Co.  (Mass.)  52  N.  E.  1005;  Ryan  v.  Armour,  166  111.  568,  47  N.  E.  60; 
Hill  v.  Drug  Co.,  140  Mo.  433,  41  S.  W.  909;  Richmond  Locomotive  Works 
v.  Ford,  94  Va.  627,  27  S.  E.  509. 

2  Lynch  v.  Allyn,  160  Mass.  248,  35  N.  E.  550.  Also,  Railsback  v.  Turnpike 
€o.,  10  Ind.  App.  622,  38  X.  E.  221;  Larich  v.  Moies,  18  R.  I.  513,  28  Atl.  061. 
But  see  St.  Louis,  A.  &  T.  Ry.  Co.  v.  Torrey,  58  Ark.  217,  24  S.  W.  244,  where 
it  was  held  that  a  bridge  carpenter  was  not  entitled  to  warning  where  there 
•was  no  evidence  of  inexperience  or  necessity  for  special  training.  General 
rule,  Deweese  v.  Mining  Co.,  128  Mo.  423,  31  S.  W.  110.  And  see  Carlson 
V.  Telephone  Exch.  Co.,  63  Minn.  428,  65  X.  W.  914. 

»  Whittaker  v.  Coombs,  14  111.  App.  498;    Wilson  v.  Retinning  Co.,  103  Mass. 


106  LIABILITY    OF    MASTER    TO    SERVANT.  (Ch.   3 

engaged  in  hazardous  occupations  are  not  informed  of  the  accompany- 
ing  dangers  by  the  master,  and,  remaining  in  ignorance,  are  conse- 
quently injured,  the  employer  is  responsible; 4  and,  in  general,  what- 
ever the  nature  of  the  work,  if  the  dangers  are  not  obvious,  and  are 
known  to,  or  reasonably  knowable  by,  the  master,  he  must  bring  them 
to  the  actual  knowledge  of  the  servant.5  The  distinction  between 
apparent  and  latent  dangers  and  the  corresponding  duty  of  instruc- 
tion is  clearly  stated  by  Sanborn,  J.,  in  Bolm  Mfg.  Co.  v.  Erick- 
son:6  "Obviously,  the  line  between  dangers  apparent  and  latent 
varies  with  the  varying  experience  and  capacity  of  the  servants  em- 
ployed. Kisks  and  dangers  that  are  apparent  to  the  man  of  long 
experience  and  of  a  high  order  of  intelligence  may  be  unknown  to 
the  inexperienced  and  ignorant.  Hence,  if  the  youth,  inexperience, 
and  incapacity  of  a  minor  who  is  employed  in  a  hazardous  occupa- 
tion are  such  that  a  master  of  ordinary  intelligence  and  prudence 
would  know  that  he  is  unaware  of,  or  does  not  appreciate,  the  ordi- 
nary risks  of  his  employment,  it  is  his  duty  to  notify  him  of  thenu 
and  instruct  him  how  to  avoid  them.  This  notice  and  instruction 
should  be  graduated  to  the  age,  intelligence,  and  experience  of  the 
servant.  They  should  be  such  as  a  master  of  ordinary  prudence 

315,  39  N.  E.  1039;  Arcade  File  Works  v.  Juteau,  15  Ind.  App.  385,  40  N.  E. 
818,  and  44  N.  E.  326;  but,  if  his  ignorance  or  inexperience  is  brought  to  his 
notice,  he  must  warn  him,  Rummell  v.  Dihvorth,  111  Pa,  St.  343,  2  Atl.  355; 
Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Frawley,  110  Ind.  18,  9  N.  E.  594;  Spelman 
v.  Iron  Co.,  56  Barb.  (N.  Y.)  151;  Smith  v.  Iron  Co.,  42  X.  J.  Law,  407; 
Reynolds  v.  Railroad  Co.,  64  Vt.  66,  24  Atl.  134  ("single  deadwoods"  made  to 
couple  those  with  double  deadwoods);  Bennett  v.  Railroad  Co.,  2  N.  D.  112, 
49  N.  W.  408  (drawbars  of  unusual  dimensions). 

*  Mather  v.  Rillston,  156  U.  S.  391,  15  Sup.  Ct.  464;  International  &  G.  N. 
R.  Co.  v.  Smith  (Tex.  Civ.  App.)  30  S.  W.  501  (vicious  steer);  Felice  v.  Rail- 
road Co.,  14  App.  Div.  345,  43  N.  Y.  Supp.  922;  Turner  v.  Lumber  Co.,  119 
N.  C.  387,  26  S.  E.  23. 

5  Helmke  v.  Stetler,  69  Hun,  107,  23  N.  Y.  Supp.  392  (vicious  horse) ;  Lowe 
v.  Railway  Co.,  89  Iowa,  420,  56  N.  W.  519;  Leigh  v.  Railway  Co.,  36  Neb. 
131,  54  N.  W.  134;  O'Connor  v.  Adams,  120  Mass.  427;  Coombs  v.  Cordage 
Co,,  102  Mass.  572;  Parkhurst  v.  Johnson,  50  Mich.  70,  15  X.  W.  107;  Ryan 
v.  Tarbox,  135  Mass.  207;  Wolski  v.  Knapp,  Stout  &  Co.  Company,  90  Wis. 
178,  63  X.  W.  87  (skidding  logs);  Carlson  v.  Telephone  Exch.  Co.,  63  Minn. 
42S,  Co  X.  W.  914. 

«  5  C.  C.  A.  341,  55  Fed.  943. 


§    41)  WARNING    AND    INSTRUCTING    SERVANTS.  107 

and  sagacity  would  give  under  like  circumstances  for  the  purpose 
of  enabling  the  minor  not  only  to  know  the  dangerous  nature  of 
the  work,  but  also  to  understand  and  appreciate  its  risks,  and  avoid 
its  dangers.  They  should  be  governed,  after  all,  more  by  the  ex- 
perience and  capacity  of  the  servant  than  by  his  age,  because  the 
intelligence  and  experience  of  men  measure  their  knowledge  and 
appreciation  of  the  dangers  about  them  far  more  accurately  than 
their  years." 

The  source  of  the  servant's  information  as  to  the  peril,  is  immate- 
rial, provided  he  has  actual  notice.7 

The  employer  need  not  anticipate  every  risk  which  may  happenr 
but  discharges  his  duty  if  he  gives  such  general  instructions  as  will 
enable  the  servant  to  comprehend  the  danger.8 

Infants. 

The  above  propositions  apply  with  equal  force  where  the  servant 
is  a  minor.  Whether  the  servant  be  an  adult  or  an  infant,  he  is 
equally  entitled  to  notice  of  the  dangers  which  he  is  likely  to  en- 
counter. If  the  master  furnishes  this  notice,  he  has-  discharged  his 
duty.  But  in  the  case  of  a  minor  the  question  may  arise  whether 
he  was  possessed  of  a  mind  sufficiently  mature  to  appreciate  the 
danger  which  was  pointed  out,  whether  in  fact  he  had  the  necessary 
knowledge  or  notice,9  and  this  is  generally  for  the  jury  to  deter- 
mine.10 

7  Foley  v.  Railway  Co.,  48  Mich.  622,  12  X.  W.  879;  Hanson  v.  Hammell 
(Iowa)  77  X.  W.  839;  Hayes  v.  Colchester  Mills,  69  Vt.  1,  37  Atl.  269. 

s  Thompson  v.  Edward  P.  Allis  Co.,  89  Wis.  523,  62  X.  W.  527. 

»  Coombs  v.  Cordage  Co.,  102  Mass.  572;  Andersen  v.  Berlin  Mills  Co.,  32 
C.  C.  A.  143,  88  Fed.  944;  Ohielinsky  v.  Hoopes  &  Townsend  Co.,  1  Marv. 
273,  40  Atl.  1127;  Hettchen  v.  Chipman,  87  Md.  729,  41  Atl.  65;  Verdelli  v. 
Commercial  Co.,  115  Cal.  517,  47  Pac.  364;  Ryan  v.  Armour,  166  111.  568,  47 
X.  E.  60;  Missouri,  K.  &  T.  Ry.  of  Texas  v.  Evans  (Tex.  Civ.  App.)  41  S.  W. 
80;  Latorre  v.  Stamping  Co.,  9  App.  Div.  145,  41  X.  Y.  Supp.  99. 

10  Hayden  v.  Manufacturing  Co.,  29  Conn.  548. 


108  LIABILITY    OF   MASTER   TO   SERVANT.  (Ch.   3 

LIMITATIONS  OF  MASTER'S  DUTY. 

42.  The  master  does  not  guaranty  the  safety  of  his  serv- 

ant, -who  assumes: 

(a)  Ordinary  risks  incident  to  the  employment. 

(b)  Known  dangers,  however  great,  but  not 

1.  Unusual  dangers,  unless 

(1)  Patent  or  reasonably  observable,  or  unless 

(2)  Notified  of  their  existence  by  the  master. 

2.  Nor  defects  or  dangers  not  discoverable  by  him 

in  the  exercise  of  ordinary  care. 

3.  Nor  a  known   defect  which  the  master  neglects 

to  repair  within  a  reasonable  time  after  promise . 

4.  Nor  a  danger  incurred  under  express  orders,  un- 

less the  risk  is  known  and  appreciated. 

(c)  Bisk  of  negligence  of  fellow  servants. 

SAME— ORDINARY  RISKS. 

43.  The  servant  is  held  to  assume  the  ordinary  risks  inci- 

dent to  his  employment,  in  so  far  as  they  may  fair- 
ly be  presumed  to  be  within  his  knowledge,  in  the 
exercise  of  ordinary  care,1  provided  the  master  has 
used  ordinary  diligence  to  eliminate  them. 

§§  42-43.  i  Peoria,  D.  &  E.  Ry.  Co.  v.  Hard  wick,  53  111.  App.  161;  Hal- 
liburton v.  Railroad  Co.,  58  Mo.  App.  27.  And  so  a  civil  engineer  employed 
by  railroad  to  build  bridges  assumes  risk  from  absence  of  watchman  at  a 
bridge  on  the  railroad,  Texas  &  P.  Ry.  Co.  v.  Smith,  14  C.  C.  A.  509,  67  Fed. 
524;  and  even  if  the  employment  is  very  dangerous,  Stewart  v.  Railroad  Co., 
40  W.  Va.  188,  20  S.  E.  922;  and  where  a  brakeman  employed  for  three  years, 
while  riding  on  the  front  of  an  engine,  was  killed  by  collision  with  a  wagon, 
caused  by  failure  of  the  railroad  to  maintain  gates  or  signals,  the  risk  was 
held  to  be  assumed,  Bancroft  v.  Railroad  Co.  (N.  H.)  30  Atl.  409.  Also,  Doyle 
T.  Railway  Co.,  42  Minn.  79,  43  N.  W.  787;  Jacksonville,  T.  &  K.  W.  Ry.  Co. 
v.  Galvin,  29  Fla.  636,  11  South.  231;  Northern  Pac.  R.  Oo.  v.  Everett,  152 
U.  S.  107,  14  Sup.  Ct.  474;  Johnson  v.  Snuff  Co.  (N.  J.  Err.  &  App.)  41  Atl, 
936;  Reese  v.  Railroad  Co.,  42  W.  Va.  333,  26  S.  E.  204.  But  see  Dewey  v. 
Railway  Co.,  97  Mich.  329,  56  X.  W.  756.  Uneven  new  side  track,  O'Neal  v. 
Railway  Co.,  132  Ind.  110,  31  N.  E.  GUS);  appliances  generally,  Texas  &  P. 


§    43)  ORDINARY    RISKS. 

This  is  true,  not  only  of  those  dangers  which  are  incident  to  the 
employment  at  the  time  he  enters  the  service,2  but  applies  equally 
to  such  hazards  as  may  afterwards  naturally  and  observably  attach 
to  the  employment.3  And  it  is  the  duty  of  the  employs'  to  observe 
his  surroundings  and  the  incidental  risks,  and  if,  by  reason  of  his 
inattention,  he  is  injured,  he  cannot  recover.4  The  degree  of  ac- 
tual danger  involved  is  immaterial,  so  long  as  it  is  ordinary  or  in- 
cident in  that  particular  line  of  work.5 

On  the  other  hand,  it  is  the  duty  of  the  master  to  use  ordinary 

Ry.  Co.  v.  Rogers,  6  C.  C.  A.  403,  57  Fed.  378;    Craven  v.  Smith,  89  Wis.  119,. 

61  N.  W.  317;    McGuirk  v.  Shattuek,  160  Mass.  45,  35  N.  E.  110. 

2  Haas  v.  Railroad  Co.,  40  Hun  (N.  Y.)  145;  Gibson  v.  Railroad  Co.,  63  N. 
Y.  449;  Shaw  v.  Sheldon,  103  N.  Y.  667,  9  N.  E.  183;  Huber  v.  Jackson  & 
Sharp  Co.,  1  Marv.  374,  41  Atl.  92;  Chicago  &  E.  I.  R.  Co.  v.  Maloney,  7T 
in.  App.  191;  Broderick  v.  Railway  Co.  (Minn.)  77  N.  W.  28;  Nourie  v. 
Theobald  (N.  H.)  41  Atl.  182;  Pennsylvania  Co.  v.  Ebaugh  (Ind.  Sup.)  53  X. 
E.  763;  Worlds  v.  Railroad  Co.,  99  Ga.  283,  25  S.  E.  646.  Absence  of  side 
platform  on  which  to  stand  when  trains  pass  on  elevated  road,  Kennedy  v. 
Railroad  Co.,  33  Hun  (N.  Y.)  457;  iron  rails  projecting  from  ends  of  cars  to 
be  coupled  by  brakeman,  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Deardorff,  14  111.  App. 
401;  drawheads  on  different  levels,  Hulett  v.  Railroad  Co.,  67  Mo.  239;  "fly- 
ing switches,"  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Knittal,  33  Ohio  St.  468;  throw- 
ing mail  bags  into  moving  trains,  Coolbroth  v.  Railroad  Co.,  77  Me.  165;  roll- 
ing a  grindstone  over  an  uneven  floor,  Walsh  v.  Railroad  Co.,  27  Minn.  367, 
8  N.  W.  145;  riding  on  handcar  and  run  over  by  delayed  train,  Railway 
Co.  v.  Leech,  41  Ohio  St  388. 

s  Houston  &  T.  C.  Ry.  Co.  v.  Conrad,  62  Tex.  627;    Dowell  v.  Railroad  Co., 

62  Iowa,  629,  17  X.  W.  901;    Taylor  v.  Manufacturing  Co.,  140  Mass.  150,  £ 
N.  E.  21;    rolling  a  grindstone  over  an  uneven  floor,  Walsh  v.  Railroad  Co., 
27  Minn.  367,  8  N.  W.  145;    Baltimore  &  O.  S.  W.  Ry.  Co.  v.  Welsh,  17  Ind. 
App.  505,  47  N.   E.   182.     In  a  cold  climate  railroad  employes  assume  the- 
risks  incident  to  the  accumulation  of  snow  and  ice  on  the  tracks.     Lawson 
v.  Truesdale,  60  Minn.  410,  62  N.  W.  546. 

*  Chicago  &  N.  W.  R.  Co.  v.  Kane,  50  111.  App.  100.  The  opportunity  of 
knowledge  is  the  equivalent  of  actual  knowledge.  McDugan  v.  Railroad  Co. 
(Com.  PI.)  10  Misc.  Rep.  336,  31  N.  Y.  Supp.  135. 

5  Stewart  v.  Railroad  Co.,  40  W.  Va.  188,  20  S.  E.  922;  moving  a  "dead' 
engine,"  Anglin  v.  Railway  Co.,  9  C.  C.  A.  130,  60  Fed.  553;  uncovered 
gearing  in  plain  sight,  McGuerty  v.  Hale,  161  Mass.  51,  36  N.  E.  682;  commu- 
tator of  electric  motor,  Burnell  v.  Railroad  Co.,  87  Wis.  387,  58  N.  W.  772. 
See,  also,  Red  River  Line  v.  Cheatham,  9  C.  C.  A.  124,  60  Fed.  517,  reversing: 
56  Fed.  248. 


110  LIABILITY    OF    MASTER   TO    SERVANT.  (Ch.   3 

•care  to  eliminate  or  reduce  tlie  dangers  of  the  employment,  and  if, 
by  reason  of  his  negligence  in  this  respect,  a  servant  is  injured,  he 
cannot  avail  himself  of  the  defense  of  assumption  of  risk;  the  ques- 
tions of  negligence  and  contributory  negligence  are  open  to  the 
jury.6 

Low  Bridges. 

Thus  in  the  case  of  bridges  over  railroad  tracks,  built  so  low  that 
a,  brakeman  upon  a  freight  car  cannot  safely  pass  under  them  in 
an  erect  position,  it  is  now  very  generally  held  by  our  courts  of 
last  resort  that  the  risk  of  injury  is  not  assumed  by  the  trainman,7 
unless  actual  knowledge  of  the  danger  by  the  servant  affirmatively 
appears.8 

In  general,  however,  it  is  immaterial  how  extraordinary  is  the  ac- 
tual danger  involved  in  any  given  line  of  work,  if  it  is  properly  in- 
cident and  germane  to  the  employment.  If  the  business  is  conducted 
with  the  usual  methods,  in  a  manner  fairly  prudent  in  the  circum- 
stances, the  hazards  become  ordinary  so  far  as  the  servant's  ex- 
posure is  concerned.  Thus  the  work  of  removing  damaged  or  crip- 
pled cars  to  the  repair  shop  is  extremely  dangerous,  but  the  danger, 
however  great,  is  necessarily  incident  to  the  employment.9  So,  also, 
the  employment  of  coupling  cars  is  one  of  constant  peril,  but  car 
•couplers  are  held  to  assume  the  risks  connected  therewith.10 

«  Sowden  v.  Mining  Co.,  55  Cal.  443;  Hawkins  v.  Johnson,  105  Ind.  29,  4 
N.  E.  172;  Northern  Pae.  R.  Oo.  v.  Mortenson,  11  C.  C.  A.  335,  63  Fed.  530; 
•Gaar,  Scott  &  Oo.  v.  Wilson,  21  Ind.  App.  91,  51  X.  E.  502;  Banks  v.  City 
of  Effingham,  63  111.  App.  221. 

T  Baltimore  &  O.  &  C.  R.  Co.  v.  Rowan,  104  Ind.  88,  3  N.  E.  627.  In  ILLI- 
NOIS it  Is  held  to  be  the  absolute  duty  of  the  railroad  company  to  build  its 
Abridges  sufficiently  high  to  avoid  all  danger  of  brakeman  being  injured  by 
striking  them,  Chicago  &  A.  R.  Co.  v.  Johnson,  116  111.  206,  4  N.  E.  381;  Atchi- 
son,  T.  &  S.  P.  R.  Co.  v.  Rowan.  55  Kan.  270,  39  Pac.  1010;  and  in  KEN- 
TUCKY the  construction  of  "low  bridges"  is  held  to  be  willful  negligence,  Cin- 
cinnati, N.  O.  &  T.  P.  Ry.  Co.  v.  Sampson's  Adm'r,  97  Ky.  65,  30  S.  W.  12; 
Fitzgerald  v.  Railroad  Co.,  37  App.  Div.  127,  55  N.  Y.  Supp.  1124. 

8  Brossrnan  v.  Railroad  Co.,  113  Pa.  St.  490,  6  Atl.  226. 

»  Stewart  v.  Railroad  Co.,  40  W.  Va.  188,  20  S.  E.  922,  where  it  was  pointed 

10  Hathaway  v.  Railroad  Co.,  51  Mich.  253,  16  N.  W.  634;  Toledo,  W.  &  W. 
Ry.  Co.  v.  Fredericks,  71  111.  294;  Northern  Cent.  R.  Co.  v.  Hussoii,  101  Pa. 
St.  1;  Hannigan  v.  Railway  Co.,  157  N.  Y.  244,  51  N.  E.  992, 


§   44)  KNOWN    DANGERS    ASSUMED.  Ill 

And  if  a  servant  voluntarily  undertakes  dangerous  work,  outside 
the  scope  of  his  employment,  and  is  injured  by  reason  of  his  un- 
familiarity  with  the  work,  or  his  lack  of  appreciation  of  the  danger 
involved,  he  assumes  the  risk,  and  cannot  recover.11 

Distinction  between  Risk  and  Condition. 

It  should  be  observed  that  it  is  not  sufficient  that  the  condition 
of  the  place,  machine,  utensil,  or  equipment  is  within  the  knowledge 
of  the  servant.  In  order  to  establish  his  assumption  of  the  risk,  it 
must  appear  that  he  knew,  or  in  the  exercise  of  ordinary  prudence 
should  have  known,  that  the  condition  involved  possible  injury  or 
risk.  Thus,  in  the  case  of  a  brakenian  coupling  cars,  equipped,  one 
with  the  old-style  platform,  and  the  other  with  the  then  new  Miller 
platform,  the  conditions  were  known  to  the  brakeman,  yet  the  court 
said  that  the  servant  might  not  have  understood  that,  upon  the  curve 
where  they  were  to  be  coupled,  there  was  danger  of  the  drawbars 
passing  one  another;  in  other  words,  although  he  knew  the  condi- 
tions, he  might  not  have  appreciated  the  risk.12 

SAME— KNOWN  DANGERS  ASSUMED. 

44.  A  servant  assumes  the  risks  arising  from  dangers  con- 
nected with  the  employment,  of  which  he  has  knowl- 
edge, or  which  are  so  obvious  as  not  to  escape  the 
observation  of  an  ordinarily  prudent  person.1 

out  that  the  test  of  liability  is  the  negligence  of  the  master,  not  the  danger 
of  the  employment;  removing  damaged  or  "crippled"  cars,  Chicago  &  N.  W. 
R.  Co.  v.  Ward,  61  111.  130;  Flannagan  v.  Railway  Co.,  50  Wis.  462,  7  N.  W. 
337;  Yeaton  v.  Railroad  Corp.,  135  Mass.  418. 

11  Richmond  &  D.  R.  Co.  v.  Finley,  12  C.  C.  A.  595.  63  Fed.  228;    Central 
Railroad  &  Banking  Oo.  v.  Chapman,  96  Ga.  769,  22  S.  E.  273. 

12  Russell  v.  Railway  Co.,  32  Minn.  230,  20  N.  W.  147;    Mundle  v.  Manu- 
facturing Co.,  86  Me.  400,  30  Atl.  16  (splinter  from  floor  penetrating  foot). 

§  44.  i  Moore  v.  Wire  Mill  Co.,  55  Mo.  App.  491;  Claybaugh  v.  Railway 
Co.,  56  Mo.  App.  630;  Mclntosh  v.  Railway  Co.,  58  Mo.  App.  281;  Hoyle  v. 
Laundry  Co.,  95  Ga.  34,  21  S.  E.  1001;  Connelly  v.  Woolen  Co.,  163  Mass.  156, 
39  N.  E.  787.  Light  not  used  on  switch,  Illinois  Cent  R.  Co.  v.  Swisher,  53 
111.  App.  411;  trees  bordering  an  unfinished  railroad,  risk  of  striking,  Man- 
ning v.  Railway  Co.,  105  Mich.  260,  63  N.  W.  312;  insecure  prop,  Lucey  v.  Oil 
Co.,  129  Mo.  32,  31  S.  W.  340;  and  even  where  the  servant  is  ordered  to 
engage  in  the  dangerous  work,  or  lose  his  position,  Dougherty  v.  Steel  Co., 


112  LIABILITY    OF    MASTER    TO    SERVANT.  (Ch.   3 

This  is  equally  true,  although  it  appears  that  the  work  in  ques- 
tion might  just  as  well  have  been  performed  in  a  less  dangerous 
manner.  Where  plaintiff  had  been  injured  by  the  caving-in  of  a 
bank,  after  being  fully  advised  of  the  attendant  danger,  the  court 
said:  "It  is  immaterial  that  there  was  a  customary,  better,  and 
safer  way  in  which  the  work  might  have  been  done,  which,  had  it 
been  done  in  that  way,  would  have  relieved  the  plaintiff  from  peril 
and  avoided  the  injury."  * 

And  if  the  risk,  although  not  necessarily  incident  to  the  business, 
is  manifest,  it  is  none  the  less  assumed;  as  if  an  employe",  volun- 
tarily and  unnecessarily,  uses  an  obviously  defective  ladder  to  ad- 
just electric  lights,  and  is  injured  thereby,  he  cannot  recover.3 

But,  if  the  danger  or  the  involved  risk  is  not  fairly  within  the 
reasonable  knowledge  or  observation  of  the  servant,  it  is  not  as- 
sumed. This  is  well  illustrated  in  the  case  of  Gates  v.  State,4  where 
a  laborer  on  a  scow  was  transferred  by  the  foreman  to  work  in  re- 
pairing a  defective  bridge,  which  fell  and  injured  him.  The  court 
there  says:  "While,  in  work  of  an  inherently  dangerous  nature,  the 
workman  is  ordinarily  held  to  assume  that  certain  risk  which  must 
attend  upon  its  execution,  that  rule  involves,  and  must  depend  for 
its  application  upon,  the  knowledge  or  means  of  knowledge,  upon 

88  Wis.  343,  60  N.  W.  274.  But  see  Wells  &  French  Co.  v.  Gortorski,  50  111. 
App.  445;  Leary  v.  Railroad  Co.,  139  Mass.  580,  2  N.  E.  115.  Also,  where 
the  danger  arises  from  the  negligence  of  the  employer,  Bonnet  v.  Railway 
Co.  (Tex.  Civ.  App.)  31  S.  W.  525;  Mundle  v.  Manufacturing  Co.,  8G  Me.  400, 
30  Atl.  16.  See,  also.  Goodes  v.  Railroad  Co.,  162  Mass.  287,  38  X.  E.  500; 
Railsback  v.  Turnpike  Co.,  10  Ind.  App.  622,  38  N.  E.  221;  Marean  v.  Rail- 
road Co.,  167  Pa.  St  220,  31  Atl.  562;  Kennedy  v.  Railway  Co.,  145  X.  Y. 
288,  39  X.  E.  956  (in  the  latter  case  the  servant  fell  through  an  opening  in 
an  elevated  railroad);  Muncie  Pulp  Co.  v.  Jones,  11  Ind.  App.  110,  38  X.  E. 
547;  Michaelson  v.  Brick  Co.,  94  Iowa,  725,  62  N.  W.  15;  Colorado  Coal  & 
Iron  Co.  v.  Lamb,  6  Colo.  App.  255,  40  Pac.  251. 

2  Lyon,  J.,  in  Xaylor  v.  Railway  Co.,  53  Wis.  661,  11  X.  W.  24. 

»  Jenney  Electric  Light  &  Power  Co.  v.  Murphy,  115  Ind.  566,  18  X.  E.  30 
(but  cf.  Burns  v.  Steamship  Co.,  84  Ga.  709,  11  S.  E.  493);  Steinhaiiser  v. 
Spraul,  127  Mo.  541,  28  S.  W.  620,  30  S.  W.  102;  O'Xeal  v.  Railway  Co.,  132 
Ind.  110,  31  X.  E.  669;  Matchett  v.  Railway  Co.,  132  Ind.  334,  31  X.  E.  792; 
and  in  respect  to  a  defective  telegraph  pole,  Foley  v.  Light  Co.,  54  X.  J.  Law, 
411,  24  Atl.  487. 

«  li:s  X.  Y.  2-21,  28  X.  E.  373. 


§    45)  UNUSUAL    DANGERS    NOT    ASSUMED.  113 

the  workman's  part,  of  the  attendant  peril  to  him.  Such  knowledge 
may  be  presumed  to  be  possessed  by  reason  of  previous  employment 
and  experience,  or  to  be  suggested  by  ordinary  observation  and  ap- 
pearances. If  the  workman  is  without  experience  in  the  particu- 
lar work  required  of  him,  and  if,  as  here,  danger  for  him  exists  from 
causes  not  apparent,  but  which  are  known  to  his  employers,  I  think 
it  unquestionable  in  principle  that  an  obligation  should  be  deemed 
to  rest  upon  them  to  communicate  such  information  as  would  apprise 
the  workman  of  the  nature  of  the  work,  and  of  the  possible  risks 
in  its  execution." 

45.  UNUSUAL  DANGERS  NOT  ASSUMED— The  servant 
does  not  assume  the  risk  arising  from  unusual  dan- 
gers, such  as  he  could  not  reasonably  anticipate  as 
incidental  to  the  employment,  unless 

(a)  The  peril  is  so  patent  as  to  be  discoverable  in  the  ex- 

ercise of  that  intelligence  -which  the  servant  may  be 
reasonably  presumed  to  possess;  or  unless 

(b)  He   has   actual  knowledge   of  the   peril  from   some 

source. 

When  the  servant  has  no  actual  or  presumptive  knowledge  of  the 
equipment  or  methods  of  his  master's  business,  he  may  rightfully 
assume  that  he  will  be  exposed  to  no  dangers  or  risks  other  than 
those  which  are  naturally  and  ordinarily  incident  to  service  of  that 
kind,  and  if  in  the  discharge  of  his  duty  he  is,  without  warning, 
subjected  to  such  a  danger,  and  is  injured,  he  may  recover.  Thus, 
where  an  employe"  in  an  iron  foundry  having  been  ordered,  contrary  to 
the  accustomed  service,  to  assist  others  in  conveying  a  ladle  of 
melted  iron  across  an  alley  way  coated  with  ice,  one  of  the  assistants 
slipped,  and  the  liquid  metal,  coming  in  contact  with  the  ice,  was 
thrown  on  the  employe",  burning  him  so  that  he  died.1  And  where 

§  45.  i  Smith  v.  Car  Works,  60  Mich.  501,  27  X.  W.  662.  At  least  there 
is  no  presumption  that  he  assumes  the  unusual  and  unknown  risk,  and  the 
question  of  the  master's  negligence  is  open  for  the  jury.  Tissue  v.  Railroad 
Co.,  112  Pa.  St.  91,  3  All.  667,  33  Alb.  Law  J.  284.  See,  also,  Baxter  v.  Rob- 
erts, 44  Cal.  187;  Fairbank  v.  Haentzsche,  73  111.  236;  Atlas  Engine  Works 
v.  Randall,  100  Ind.  293;  Sullivan  v.  Manufacturing  Co.,  113  Mass.  396. 
BAR.XEG.— 8 


114  LIABILITY    OF    MASTER    TO    SERVANT.  (Ch.   3 

a  watchman  was  bitten  by  a  savage  dog,  which  the  employer  gen- 
erally kept  fastened,  but  which,  on  this  occasion,  had  been  let  out 
without  warning  to  the  servant,  the  court  said:  "He  [the  watch- 
man] assumed  the  risks  consequent  upon  the  keeping  of  a  ferocious 
dog  which  was  kept  fastened,  except  when  he  was  otherwise  no- 
tified." 2  But  in  the  large  majority  of  cases  where  the  injury  com- 
plained of  is  the  result  of  an  unusual  risk,  or  one  not  contemplated 
at  the  inception  of  the  service,  the  main  question  is  the  knowledge 
or  ignorance  of  the  servant  of  the  encountered  danger, — whether  he 
knew,  or  in  the  exercise  of  reasonable  care  and  intelligence  should 
have  known,  of  its  existence.  In  the  admirably  considered  case  of 
Foley  v.  Jersey  City  Electric  Light  Co.,3  the  court  says:  "Obvious 
dangers  which  he  [the  servant]  enters  upon  voluntarily  are  impliedly 
assumed  by  him,  if  he  continues  in  the  service.  *  *  *  If  the  serv- 
ant knows  of  the  defect,  and  it  is  of  such  a  nature  that  a  prudent 
person  will  not  abandon  the  service  on  account  of  it,  then  no  neg- 
ligence can  be  charged  to  the  master  for  permitting  the  defect  to 
continue.  *  *  *  The  servant  and  the  master  had  equal  means 
of  forming  a  correct  judgment.  Therefore,  whatever  want  of  pru- 
dence in  taking  the  risk  is  chargeable  to  the  one  must  be  imputed 
to  the  other.  *  *  *  The  cases  rigidly  hold  the  doctrine  that 
the  servant  takes  upon  himself  such  definite  and  determinate  risks 
as  are  obvious,  and  no  action  will  lie  against  the  master  for  in- 
juries to  the  servant  in  such  cases.  There  is  no  circumstance  pres- 
ent in  this  case  to  take  the  case  out  of  the  general  rule." 

It  is  the  duty  of  the  servant  to  exercise  care  to  avoid  injuries  to 
himself.  He  is  under  as  great  obligation  to  provide  for  his  own 
safety  from  such  dangers  as  are  known  to  him,  or  discernible  by  ordi- 
nary care  on  his  part,  as  the  master  is  to  provide  for  him.4 

In  a  voluminous  class  of  cases  falling  under  this  head,  some  con- 
flict and  confusion  is  found  in  the  decisions.  The  case  of  Dorsey  v. 
Phillips  &  Colby  Const.  Co.5  will  serve  as  an  illustration.  In  this 
case  the  conductor  of  a  freight  train  was  injured  while  climbing  up 

2  Muller  v.  McKesson,  73  X.  Y.  195.    See,  also,  Fitzgerald  v.  Paper  Co.,  155 
Mass.  155,  29  X.  E.  464;    Malioney  v.  Dore,  155  Mass.  513,  30  X.  E.  366. 
s  54  X.  J.  Law,  411,  24  Atl.  487. 
<  Wormell  v.  Railroad  Co.,  79  Me.  397,  10  Atl.  49. 
B  42  Wis.  583. 


§    45)  UNUSUAL    DANGERS    NOT    ASSUMED.  115 

the  ladder  of  a  car,  by  being  struck  by  a  cattle  chute  placed  near 
the  track.  During  his  employment  of  several  months  he  had  passed 
the  chute  almost  daily,  and  knew  of  its  existence  and  exact  loca- 
tion; yet  the  court  said  that,  while  he  may  have  known  generally 
of  the  proximity  of  the  chute  in  question  to  the  track,  yet  neces- 
sarily it  did  not  follow  that  he  knew  its  precise  distance  therefrom, 
and  consequently  not  its  precise  danger.  So,  also,  in  a  similar  case, 
where  a  switchman  in  climbing  the  ladder  of  a  freight  car  was  struck 
by  a  signal  post,  the  court  says:  "We  are  not  prepared  to  say, 
however,  that  this  is  conclusive  evidence  that  he  was  negligent,  or 
that  he  knew,  or  should  have  known,  if  he  used  ordinary  prudence, 
the  danger  of  such  an  accident.  *  *  *  While  he  must  have 
known  of  the  existence  and  location  of  the  post,  he  may  not  have 
known,  from  mere  observation,  or  unless  his  attention  had  in  some 
way  been  specially  called  to  it,  that  it  was  near  enough  to  the  ears 
to  be  dangerous,  but  might  be  misled,  unless  he  had  made  actual 
measurement  or  calculation."  6  In  these  and  other  similar  cases,7 
the  injured  person  was  perfect!}-  familiar  with  the  condition  which 
embraced  the  danger.  It  did  not  require  unusual  intelligence  or 
special  training  to  foresee  the  menace  which  existed  in  the  proximity 
of  the  structures  to  the  track.  It  is  the  servant's  duty  to  use  rea- 
sonable care  to  inform  himself  by  an  examination  of  his  surround- 
ings,8 and,  if  the  defect  or  danger  is  obvious,  knowledge  will  be  pre- 
sumed.9 That  a  switchman  or  conductor  is  not  informed  of  the  ex- 
act number  of  inches  that  will  intervene  between  a  signal  post  and 
a  passing  car  cannot  raise  any  possible  inference  that  he  does  not 
know  and  appreciate  the  danger.  But  by  far  the  greater  weight 
of  authority  in  this  line  of  cases  holds  strongly  that,  when  the  con- 
dition, character,  and  position  of  structures  incident  to  the  serv- 
ice are  known  to  the  servant,  he  must  be  presumed  to  know  the 

6  Johnson  v.  Railway  Co.,  43  Minn.  53,  44  N.  W.  884.  Compare  Bengtson 
v.  Railway  Co.,  47  Minn.  486,  50  N.  W.  531. 

'  Sweet  v.  Railroad  Co.,  87  Mich.  559,  49  N.  W.  559;  Goodes  v.  Railroad 
Co.,  102  Mass.  287,  38  X.  E.  500. 

sWorruell  v.  Railroad  Co.,  79  Me.  397,  10  Atl.  49;  Batterson  v.  Railway 
Co.,  53  Mich.  125,  18  N.  W.  584. 

»  Lovejoy  v.  Railroad  Co.,  125  Mass.  79;  and  see  cases  cited  in  section  45, 
note  10,  inl'ia. 


116  LIABILITY    OF    MASTER   TO   SERVANT.  (Ch.   3 

danger  and  to  assume  the  attendant  risk.10  Thus,  in  Tuttle  v.  De- 
troit, Gr.  H.  &  M.  Ry.  Co.,11  the  alleged  defect  and  negligence  con- 
sisted in  the  sharpness  of  the  curves  on  a  side  track.  The  court 
here  says:  'The  perils  in  the  present  case,  arising  from  the  sharp- 
ness of  the  curve,  were  seen  and  known.  Everything  was  open  and 
visible,  and  the  deceased  had  only  to  use  his  senses  and  his  faculties 
to  avoid  the  dangers  to  which  he  was  exposed." 

From  what  has  already  been  said,  it  follows,  as  a  general  proposi- 
tion of  law,  that  if  an  employ^  continues  in  the  service,  after  full 
knowledge  and  appreciation  of  a  defect  and  accompanying  danger, 
he  cannot  recover  for  injuries  sustained  thereby.  Exception  has 
been  taken  to  this  rule,  as  being  unjust,  and  not  based  on  sound 
legal  principle,  and  the  following  has  been  offered  as  the  true  rule 
of  the  effect  of  notice  in  such  cases:  "A  servant  cannot  recover 
against  his  master,  for  an  injury  suffered  through  exposure  to  dan- 
ger from  defects  of  which  he  had  notice,  if,  under  all  the  circum- 
stances, a  servant  of  ordinary  prudence,  acting  with  such  prudence, 
would  not  have  continued  the  same  work  under  the  same  risk."  12 
The  proposition  is  doubtless  sound,  but  the  corollary  suggests  itself: 
If,  on  the  contrary,  in  the  circumstances,  a  servant  of  ordinary 
prudence,  acting  with  such  prudence,  would  have  continued  the  same 
work,  under  the  same  risk,  the  defect  in  question  could  not  be  of 
such  a  nature  as  to  place  the  imputation  of  negligence  upon  the 
master,  if  he  permitted  it  to  continue.13 

loLovejoy  v.  Railroad  Co.,  125  Mass.  79;  Gibson  v.  Railway  Co.,  63  N.  Y. 
449;  De  Forest  v.  Jewett,  88  N.  Y.  264;  Batterson  v.  Railway  Oo.,  53  Mich. 
127,  18  N.  W.  584;  Michigan  Cent.  R.  Co.  v.  Austin,  40  Mich.  247;  Illick 
v.  Railroad  Co.,  67  Mich.  632,  35  X.  W.  708;  Alabama  G.  S.  R.  Co.  v.  Davis 
(Ala.)  24  South.  862;  Chielinsky  v.  Hoopes  &  Townsend  Co.,  1  Marv.  273,  40 
Atl.  1127;  Westville  Coal  Co.  v.  Milka,  75  111.  App.  638;  Whelton  v.  Rail- 
way Co.  (Mass.)  52  N.  E.  1072;  Lang  v.  Transportation  Line  (Mich.)  77  N. 
W.  633;  Nashville,  O.  &  St.  L.  R.  Co.  v.  Gann  (Tenn.  Sup.)  47  S.  W.  493;  Du- 
gal  v.  City  of  Chippewa  Falls  (Wis.)  77  N.  W.  878;  Henion  v.  Railroad  Co., 
25  C.  C.  A.  223,  79  Fed.  903;  Louisville  &  N.  R.  Co.  v.  Kemper,  147  Ind.  561, 
47  N.  E.  214;  Chicago,  B.  &  Q.  R.  Co.  v.  McGinnis,  49  Neb.  649,  68  N.  W.  1057; 
Nuss  v.  Rafsnyder,  178  Pa.  St.  397,  35  Atl.  958. 

11 122  U.  S.  189,  7  Sup.  Ct.  1166.  See,  also,  Randall  v.  Railroad  Co.,  109 
U.  S.  478,  3  Sup.  Ct.  322;  Stephenson  v.  Duncan,  73  Wis.  404,  41  N.  W.  337. 

12  Shear.  &  R.  Neg.  (4th  Ed.)  §  211  et  seq. 

i«  Foley  v.  Light  Co.,  54  N.  J.  Law,  411,  24  Atl.  487. 


•§    46)  UNKNOWN    DEFECTS    OR    DANGERS.  117 


-  Discovered  Dangers. 
When  the  knowledge  of  the  defect  or  danger  is  so  recent  as  not, 
in  the  circumstances,  to  afford  reasonable  opportunity  for  an  esti- 
mate of  the  attendant  risk,  as  in  the  case  of  a  newly-hired  servant 
or  an  unusual  danger  injected  into  the  service  after  its  inception, 
the  proposition  becomes  entirely  different,  and  an  assumption  of  the 
peril  cannot  be  imputed  to  the  employe".14 

46.  UNKNOWN  DEFECTS  OR  DANGERS—  The  servant 
does  not  assume  the  risk  of  injury  from  defects  or 
dangers  not  known,  and  not  discoverable  by  him  in 
the  exercise  of  ordinary  care. 

Thus,  where  the  employe"  of  a  shipbuilder  was  directed  to  do  certain 
work  beneath  a  scaffolding  which  was  improperly  constructed,1  and 
where  a  brakeman  was  required  to  couple  cars  furnished  with  double 
deadwoods,2  no  instructions  as  to  the  attendant,  unknown  danger 
having  been  given  in  either  case,  the  risk  was  not  assumed.  Thus, 
also,  in  the  case  of  Pantzar  v.  Tilly  Foster  I.  Min.  Co.,3  the  court  said: 
"The  evidence  tends  to  show  that  the  plaintiff  was  ignorant  of  the 
dangerous  condition  of  the  rock,  and  that  his  duties  did  not  call  him 
to  any  place  from  which  it  could  be  observed.  He  therefore  had  a 
right  to  rely  upon  the  performance  of  the  duty  owing  by  the  master, 

i*  Brakeman  on  his  first  trip  struck  by  a  signal  post,  Scanlon  v.  Railroad 
Co.,  147  Mass.  484,  18  N.  E.  209;  reasonable  opportunity  not  afforded  employe. 
to  become  familiar  with  location  of  an  awning  on  station  house,  Nugent  v. 
Railroad  Co.,  80  Me.  62.  12  Atl.  797. 

§  46.     i  Connolly  v.  Poillon,  41  Barb.  (N.  Y.)  366,  affirmed  in  41  N.  T.  619. 

2  Gibson  v.  Railroad  Co.,  46  Mo.  163.     See,  also,  Philadelphia  &  R.  R.  Co. 
v.  Huber,  128  Pa.  St.  63,  18  Atl.  334;    Sherman  v.  Railway  Co.,  34  Minn.  259, 
25  N.  W.  593;    Barbo  v.  Bassett,  35  Minn.  485,  29  N.  W.   198;    Buzzell  v. 
Manufacturing  Co.,  48  Me.  113;    Reber  v.  Tower,  11  Mo.  App.  199;    Baker 
v.  Railroad  Co.,  95  Pa.  St.  211;    Ryan  v.  Fowler,  24  N.  Y.  410;    Arkerson  v. 
Dennison,  117  Mass.  407;    Warden  v.  Railroad  Co.,  137  Mass.  204;    Hough  v. 
Railway  Co.,  100  U.  S.  213;   Toledo,  W.  &  W.  R.  Co.  v.  Ingraham,  77  111.  309; 
Alabama  G.  S.  R.  Co.  v.  Davis  (Ala.)  24  South.  862;    Xof  singer  v.  Goldman 
(Cal.)  55  Pac.  425;    Alton  Paving,  Building  &  Fire-Brick  Co.  v.  Hudson,  176 
111.  270,  52  X.  E.  256;    Norfolk  &  W.  R.  Co.  v.  Ampey,  93  Va.  108,  25  S.  E. 
226. 

3  99  N.  Y.  368,  2  N.  E.  24. 


118  LIABILITY    OF    MASTER    TO    SERVANT.  (Ch.    3 

of  adopting  proper  and  suitable  measures  of  precaution  to  guard  him 
against  the  consequence  of  any  danger  arising  from  the  obviously 
unsafe  condition  of  the  rock,  and  is  not  justly  censurable  for  an  omis- 
sion to  discover  the  impending  danger  himself  in  time  to  avoid  it." 
But  it  does  not  follow  that,  in  the  event  of  injury  to  the  servant 
from  a  danger  of  this  class,  the  master  is  necessarily  liable.  If  the 
master  has  exercised  ordinary  care  to  guard  against  the  defect  or 
danger,  and  is  unaware  of  its  existence,  he  is  exonerated.  The 
negligence  of  the  master  must  combine  with  the  nonassumption  of 
risk  on  the  part  of  the  servant  in  order  to  justify  a  recovery.4 

Nor  does  the  servant  assume  the  risk  of  injury  when,  taking  all 
the  circumstances  into  consideration  and  the  physical  defect  or  condi- 
tion being  known,  he  does  not,  in  the  exercise  of  ordinary  care  and 
prudence,  appreciate  the  attendant  danger.5  In  a  suit  by  a  carpenter 
for  injuries  caused  by  the  use  of  a  defective  "jigger"  in  loading  car 
wheels,  the  court  used  the  following  language:  "It  is  said  the  plain- 
tiff might  also  see  the  defects.  True,  but  he  did  not  know  the  effect 
of  such  deficiencies,  and  was,  moreover,  directed  by  his  superior  to 
get  and  use  the  instrument,  and  whether,  under  the  circumstances, 
he  should  be  charged  with  knowledge,  and  with  negligence  by  reason 
of  it,  was  also  for  the  jury."  • 

The  foregoing  rule  as  to  the  appreciation  of  an  incurred  risk  is* 
perhaps,  somewhat  emphasized  in  the  case  of  minors,  although,  in 
principle,  no  distinction  should  be  made  on  account  of  the  age  of  the 
servant.7  As  a  matter  of  fact,  a  person  of  immature  age  and  judg- 


*  Painton  v.  Railroad  Co.,  83  N.  Y.  7. 

5  The  test  as  to  assumption  of  risk  by  an  employe"  who  uses  a  dangerous 
machine  is  whether  an  ordinarily  prudent  person  of  his  age  and  experience, 
under   like   circumstances,    would    have   appreciated    the   danger.     Craven    v. 
Smith,  89  Wis.  119,  61  N.  W.  317.     See,  also,  Louisville  &  X.  R.  Co.  v.  Vestal 
(Ky.)  49  S.  W.  204;   Whitney  &  Starrette  Co.  v.  O'Rourke,  172  111.  177.  50  N. 
E.  242;    Gusman  v.  Railroad  Co.,  49  La.  Ann.  1264,  22  South.  742;    Galveston, 
H.  &  S.  A.  Ry.  Co.  v.  McCrary  (Tex.  Civ.  App.)  43  S.  W.  275. 

6  Kain  v.  Smith,  89  X.  Y.  375.     See,  also,  Smith  v.  Car-Works,  60  Mich.  501r 
27  X.  W.  662;    McGowan  v.  Smelting  Co.,  3  McCrary,  393,  9  Fed.  861;    Dale 
v.  Railway  Co.,  63  Mo.  455. 

7  Pittsburgh,  C.  &  St.  L.  Ry.   Co.  v.  Adams,   105  Ind.  151,  5  X.   E.   187; 
Gartland  v.  Railway  Co.,  67  111.  498;   De  Graff  v.  Railroad  Co.,  76  X.  Y.  125; 
Kaufhold  v.  Arnold,  163  Pa.  St.  269,  29  Atl.  883;   Alabama  Mineral  R.  Co.  v. 


§  46)  UNKNOWN  DEFECTS  OB  DANGERS.  119 

ment  is  less  likely  to  appreciate  the  exact  danger  of  a  given  defect 
than  one  of  riper  years  and  intelligence.  For  this  reason,  the  age, 
intelligence,  and  experience  of  the  servant  are  material  circumstances 
for  consideration  in  determining  the  question  of  realization  of  the 
peril,8  but,  if  the  risk  is  actually  appreciated,  the  rule  is  not  relaxed 
on  account  of  the  age  of  the  servant.9 

For  the  reasons  above  stated,  it  is  the  duty  of  the  master,  in  set- 
ting minors  to  work  at  dangerous  machinery  or  in  exposed  positions, 
to  warn  them  in  plain,  explicit  language  of  the  attendant  danger. 
Instructions  by  the  master  which  might  easily  satisfy  the  require- 
ments of  ordinary  care  in  dealing  with  an  adult  might  fall  far  short 
of  the  standard  of  duty  when  given  to  a  child  of  tender  years  and 
slight  experience.10  And,  even  if  a  full  explanation  of  the  danger  is 
given  the  minor,  if  he  is  not  sufficiently  mature  to  appreciate  the 
risk  it  is  not  assumed,  and  recovery  may  be  had  for  injuries  sus- 
tained thereby.11  But,  where  the  danger  is  obvious  to  even  a  child, 
it  is  not  the  duty  of  the  master  to  point  it  out.  Thus,  in  the  case 
of  a  boy  14  years  old,  who  was  injured  in  an  elevator  by  allowing  his 
foot  to  project  beyond  the  door,  it  was  held  that  the  danger  was  one 
which  a  child  of  his  age  should  have  observed  and  appreciated  with- 
out warning.12  The  test  in  these  cases  is  similar  to  that  stated  un- 
der contributory  negligence, — if  the  danger  is  one  which,  by  fair 
presumption,  would  be  observed  and  realized  by  a  reasonably  prudent 
child  of  the  same  age  in  similar  circumstances,  the  master  is  not 
bound  to  give  special  instruction  or  warning.13 

Marcus.  115  Ala.  389,  22  South.  135;  Dunn  v.  McXamee,  59  X.  J.  Law,  498, 
37  Atl.  Gl. 

a  Luebke  v.  Machine  Works,  88  Wis.  442,  GO  N.  W.  711. 

»  Reardon  v.  Card  Co.,  51  X.  Y.  Super.  Ct.  134;  Curran  v.  Manufacturing 
Co.,  ISO  Mass.  374;  Anderson  v.  Morrison.  22  Minn.  274;  Schliermann  v. 
Typewriter  Co.,  11  Misc.  Rep.  546,  32  X.  Y.  Supp.  748. 

10  Coombs  v.  Cordage  Co.,  102  Mass.  572;    Buckley  v.  Manufacturing  Co.,  41 
Hun  (X.  Y.)  450;    Louisville,  X.  A.  &  C.  Ry.  Co.  v.  Frawley,  110  Ind.  18,  9 
X.  E.  594. 

11  Hamilton  v.   Railroad    Co.,   54  Tex.   556;     Coombs   v.    Cordage   Co.,    102 
Mass.  572;   Turner  v.  Railroad  Co.,  40  W.  Va.  675.  22  S.  E.  S3. 

12  Costello  v.  Judson,  21  Hun  (X.  Y.)  396;    and  where  a  child  of  10  years 
had  her  hand  crushed  between  hot  rollers,  Phillips  v.  Michaels,  11  Ind.  App. 
672,  39  X.  E.  669. 

is  Atlas  Engine  Works  v.  Randall,  100  Ind.  293;   Hayes  v.  Colchester  Mills, 


120  LIABILITY    OF    MASTER    TO    SERVANT.  (Ch.   3 

47.  PROMISE  TO  REPAIR— If  a  servant,  noting  a  defect 
in  the  appliance  or  place,  complains  to  the  master, 
who  promises  that  it  shall  be  remedied,  he  may,  in 
reliance  on  the  promise,  continue  in  the  service  for 
a  reasonable  time  thereafter  without  thereby  as- 
suming the  risk,  provided  the  danger  is  not  of  so 
imminent  a  character  that  a  person  of  ordinary 
prudence  would  refuse  to  continue  in  the  service. 

In  Hough  v.  Texas  &  P.  Ry.  Co.1  defendant's  engineer  complained 
of  a  defective  cowcatcher  on  his  engine,  which,  it  was  promised, 
would  be  remedied.  The  repair  was  not  made,  and  the  engineer  was 
injured  in  consequence.  The  court  held  that  the  continued  use  of 
the  engine,  in  the  well-grounded  belief  that  it  would  be  put  in  proper 
condition  within  a  reasonable  time,  did  not  necessarily,  as  a  matter 
of  law,  make  the  engineer  guilty  of  contributory  negligence;  that  it 
was  for  the  jury  to  determine  whether,  relying  upon  such  promise, 
and  using  the  machinery  after  he  knew  of  its  defective  or  insufficient 
condition,  he  was  in  the  use  of  due  care. 

But  it  must  appear  that  the  master,  and  not  some  unauthorized 
person,  made  the  promise  to  repair  upon  which  the  servant  relied,2 
and  there  must  be  no  equivocation  or  uncertainty  about  the  proni- 

69  Vt.  1,  37  Atl.  269;  Vorbrich  v.  Manufacturing  Co.,  96  Wis.  277,  71  N.  W. 
434;  Chicago,  B.  &  Q.  R.  Co.  v.  Eggrnan,  59  111.  App.  680. 

§  47.  1 100  U.  S.  213.  The  principle  applies  equally  to  both  appliances  and 
places,  Greene  v.  Railway  Co.,  31  Minn.  248,  17  N.  W.  378;  and  to  incompe- 
tent fellow  servants,  Laning  v.  Railroad  Co.,  49  N.  Y.  521.  See,  also,  Wuotilla 
v.  Lumber  Co.,  37  Minn.  153,  33  N.  W.  551;  Lyberg  v.  Railroad  Co.,  39  Minn. 
15,  38  N.  W.  632;  Missouri  Furnace  Co.  v.  Abend,  107  111.  44;  Conroy  v.  Iron 
Works,  62  Mo.  35;  Union  Mfg.  Co.  v.  Morrissey,  40  Ohio  St.  148;  Parody  v. 
Railway  Co.,  15  Fed.  205;  Linch  v.  Manufacturing  Co.,  143  Mass.  200.  9  N.  E. 
728;  Hatt  v.  Nay,  144  Mass.  186,  10  N.  E.  807;  Buzzell  v.  Manufacturing  Co., 
48  Me.  113;  Donley  v.  Dougherty,  174  111.  582,  51  N.  E.  714;  McFarlan  Car- 
riage Co.  v.  Potter  (Ind.  Sup.)  52  N.  E.  209;  Miller  v.  Mining  Co.  (Utah)  55  Pac. 
58;  Nelson  v.  Shaw  (Wis.)  78  N.  W.  417;  Texas  &  N.  O.  R.  Co.  v.  Bingle,  91 
Tex.  287;  42  S.  W.  971;  Standard  Oil  Co.  v.  Helmick,  148  Ind.  457,  47  N.  E.  14. 

2  Ehmcke  v.  Porter,  45  Minn.  338,  47  N.  W.  1066;  Chesapeake,  O.  &  S.  W. 
R.  Co.  v.  McDowell  (Ky.)  24  S.  W.  607.  Promise  of  superintendent  in  charge 
sufficient.  Patterson  v.  Railroad  Co.,  76  Pa.  St.  389. 


§   47)  PROMISE    TO    REPAIR.  121 

ise.3  Where  complaint  is  made,  but  there  is  a  failure  to  repair  the 
defect  within  a  reasonable  time,  there  can  be  no  recovery.4  But 
where  a  particular  danger  is  foreseen  by  the  servant,  and  the  work 
is  undertaken  in  reliance  upon  an  express  promise  to  provide  against 
it,  the  same  general  principle  holds  true;  as  where  a  servant  of  a 
railroad  company,  sent  out  to  shovel  snowdrifts,  was  frozen  by  rea- 
son of  the  master's  failure  to  provide  a  warming  car,  according  to 
promise.5 

If,  however,  the  danger  which  threatens  is  of  such  an  immediately 
impending  and  menacing  character  that  a  continuance  in  the  service 
•would  not  be  consistent  with  ordinary  prudence,  a  promise  to  repair 
•will  not  relieve  the  servant  from  the  assumption  of  the  risk,  if  he 
proceeds  with  the  work.6 

It  is  apprehended  that  this  general  rule  must  be  restricted  to  some 
extent,  where  the  use  of  simple  tools  and  utensils,  and  not  compli- 
cated and  dangerous  machinery,  is  involved.  In  Marsh  v.  Checkering  7 
the  court  said:  "In  cases,  however,  where  persons  are  employed  in 
the  performance  of  ordinary  labor,  in  which  no  machinery  is  used, 
-and  no  materials  furnished,  the  use  of  which  requires  the  exercise 

a  Wilson  v.  Railroad  Co.,  37  Minn  326,  33  N.  W.  908;  Jones  v.  File  Co.  (R. 
I.)  42  Atl.  509;  Brewer  v.  Railway  Co..  97  Tenn.  615,  37  S.  W.  549.  A  mere 
acknowledgment  of  defect  by  the  master,  with  an  evasive  remark,  is  not  a 
promise  to  remedy.  Breig  v.  Railway  Co.,  98  Mich.  222,  57  N.  W.  118.  But 
see  Indianapolis  Union  Ry.  Co.  v.  Ott,  11  Ind.  App.  564.  38  N.  E.  842;  Roth- 
•enberger  v.  Milling  Co.,  57  Minn.  461,  59  N.  W.  531.  And  even  a  promise  to 
repair  is  immaterial  if  the  continuance  at  the  work  is  not  made  in  reliance 
upon  the  promise.  Showalter  v.  Fairbanks.  Morse  &  Co.,  88  Wis.  376,  60 
N.  W.  257.  Mere  objection  or  protest  on  the  part  of  the  servant,  unless 
•coupled  with  a  promise  by  the  master,  is  insufficient.  Sweeney  v.  Envelope 
Co.,  101  N.  Y.  520,  5  N.  E.  358;  Cole  v.  Railway  Co.,  71  Wis.  114,  37  X.  W. 
S4;'  Webber  v.  Piper.  38  Hun  (N.  Y.)  353;  Ft.  Wayne,  J.  &  S.  R.  Co.  v.  Gilder- 
fileeve,  33  Mich.  133. 

*  Morbach  v.  Mining  Co.,  53  Kan.  731,  37  Pac.  122;  Trotter  v.  Furniture 
•Co.  (Tenn.  Sup.)  47  S.  W.  425. 

s  Hyatt  v.  Railroad  Co.,  19  Mo.  App.  287;  Huber  v.  Jackson  &  Sharp  Co., 
1  Marv.  374,  41  Atl.  92. 

e  Indianapolis  Union  Ry.  Co.  v.  Ott  (Ind.  App.)  35  N.  E.  517,  38  N.  E.  842; 
Russell  v.  Tillotson,  140  Mass.  201,  4  N.  E.  231;  Greene  v.  Railway  Co..  31 
Minn.  248,  17  N.  W.  378;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Midgett,  1  Kan.  App. 
138,  40  Pac.  995;  Erdman  v.  Steel  Co.,  95  Wis.  6,  09  N.  W.  993. 

7  101  X.  Y.  399,  5  N.  E.  57. 


122  LIABILITY    OF    MASTER    TO   SERVANT.  (Ch.   3 

of  great  skill  and  care,  it  can  scarcely  be  claimed  that  a  defective 
instrument  or  tool  furnished  by  the  master,  of  which  the  employe" 
has  full  knowledge  and  comprehension,  can  be  regarded  as  making 
out  a  case  of  liability,  within  the  rule  laid  down.  *  *  *  He  fully 
comprehended  that  the  spade,  or  the  hoe,  or  the  ladder,  or  the  in- 
strument which  he  employed  was  not  perfect.  If  he  was  thereby 
injured,  it  was  by  reason  of  his  own  fault  and  negligence.  The  fact 
that  he  notified  the  master  of  the  defect,  and  asked  for  another  in- 
strument, and  the  master  promised  to  furnish  the  same,  in  such  a 
case  does  not  render  the  master  responsible  if  an  accident  occurs." 

48.  COMPLIANCE  WITH  EXPRESS  ORDERS— When  a 
servant,  in  obedience  to  instruction,  undertakes  to 
perform  a  service  outside  the  scope  of  his  employ- 
ment, he  assumes  only  such  increased  risks  as  are 
patent  and  obvious,  or  discoverable  in  the  exercise 
of  such  skill  and  intelligence  as  are  presumably 
possessed  by  -workmen  of  the  grade  of  his  original 
employment. 

Courts  are  not  entirely  harmonious  as  to  the  character  and  ex- 
tent of  risks  which  should  be  deemed  assumed  in  the  conditions 
named,  but  it  is  believed  that  the  foregoing  proposition  fairly  car- 
ries the  weight  of  authority.1 

The  principle  may  be  more  cautiously  expressed  as  follows:  If  a 
common  laborer,  who,  at  the  request  of  his  master,  attempts  to  per- 
form a  hazardous  service  temporarily,  outside  his  employment,  with- 
out objection,  is  injured  while  performing  such  duty,  his  apparent 
consent  will  not  alone  defeat  his  right  of  recovery,  although  the  dan- 
ger is  apparent  to  a  person  possessed  of  skill,  but  not  to  a  common 
laborer.2  It  follows,  as  a  corollary  of  the  stated  rule,  that  when 
the  temporary  service  required  of  the  employe"  is  entirely  different 
in  kind,  and  the  attendant  perils  of  such  a  nature  that  the  servant 

§  48.  i  Dougherty  v.  Steel  Co.,  88  Wis.  343,  60  N.  W.  274;  Rooney  v. 
Carson,  161  Pa.  St.  26,  28  Atl.  996;  Gill  v.  Homrighausen,  79  Wis.  634,  48 
X.  W..862.  See,  also,  Davidson  v.  Cornell,  132  N.  Y.  228,  30  X.  E.  573.  But 
see  Fitzgerald  v.  Paper  Co.,  155  Mass.  155,  29  N.  E.  464. 

a  Paule  v.  Mining  Co.,  80  Wis.  350,  50  N.  W.  189. 


§    48)  COMPLIANCE    WITH    EXPRESS    ORDERS.  123 

could  not  acquire  a  knowledge  of  them  in  the  work  for  which  he 
was  hired,  he  has  not  assumed  the  increased  risk.3 

It  should  be  observed  that  the  cases  cited  in  support  of  this  rule 
are  based  on  the  ignorance,  actual  or  presumed,  of  the  dangers  to 
which  the  change  in  employment  subjected  the  servant;  but  there 
would  seem  to  be  no  tenable  theory  by  which  the  master  could  be 
held  liable  for  injuries  sustained  by  the  servant  in  the  performance 
of  a  temporary  and  unusual  service,  merely  by  reason  of  the  increased 
risks  and  dangers  attendant  thereon,  and  which  were  fully  under- 
stood and  appreciated  by  the  servant.4  In  the  case  of  Cole  v.  Chi- 
cago &  X.  W.  Ry.  Co.,5  counsel  for  the  plaintiff  argued  that  the 
mere  act  of  the  master  in  directing  the  performance  of  such  tem- 
porary and  dangerous  work  is  such  negligence  as  to  sustain  the 
action  of  the  servant  for  injuries  suffered  in  its  performance,  while 
using  ordinary  care.  But  the  court  says:  "We  are  very  clear  that 
the  broad  rule  contended  for  by  the  learned  counsel  for  the  respond- 
ent is  not  sustained  by  the  authorities  nor  by  the  general  rules  of 
law  which  define  the  relations  of  the  employer  and  employed  Some 
of  the  cases  cited  by  the  learned  counsel  for  the  respondent  may  have 
some  general  statements  in  the  opinions  which  give  some  countenance 
to  the  rule  as  stated  by  counsel;  but,  when  the  facts  of  each  case 
are  considered,  it  will,  we  think,  be  found  that  no  such  broad  rule 
was  ever  intended  to  be  sanctioned  by  any  of  the  courts." 

In  Leary  v.  Boston  &  A.  R  Co.6  the  general  rule  is  laid  down 

s  Paule  v.  Mining  Co..  80  Wis.  350,  50  N.  W.  189;  Mann  v.  Print  Works,  11 
R.  I.  152. 

*  McGinnis  v.  Bridge  Co.,  49  Mich.  466,  13  N.  W.  819;  Wormell  v.  Railroad 
Co.,  79  Me.  397,  10  Atl.  49;  Rummell  v.  Dibvorth,  111  Pa.  St.  343,  2  Atl.  355; 
Leary  v.  Railway  Co.,  139  Mass.  587,  2  X.  E.  115;  Union  Pac.  Ry.  Co.  v. 
Fort,  17  Wall.  554;  Cahill  v.  Hilton,  106  N.  Y.  512,  13  X.  E.  339;  Lalor  v. 
Railway  Co.,  52  111.  401;  Ohio  &  M.  R.  Co.  v.  Hammersley,  28  Ind.  371;  Pitts- 
burgh, C.  &  St.  L.  Ry.  Co.  v.  Adams,  105  Ind.  151,  5  N.  E.  187;  Mann  v. 
Print  Works.  11  R.  I.  152;  Chicago  &  X.  W.  Ry.  Co.  v.  Bayfield.  37  Mich. 
205;  Cook  v.  Railway  Co.,  34  Minn.  45,  24  X.  W.  311;  O'Connor  v.  Adams,  120 
Mass.  427;  Benzing  v.  Steinway,  101  N.  Y.  547,  5  N.  E.  449.  And,  even  if  the 
unusual  danger  is  incurred  in  obedience  to  the  command  of  a  superior,  but  in 
violation  of  an  established  rule,  the  servant  assumes  the  risk.  Richmond  & 
D.  R.  Co.  v.  Finley,  12  C.  C.  A.  595,  63  Fed.  228. 

s  71  Wis.  114.  37  X.  W.  84. 

e  139  Mass.  580,  2  X.  E.  115;   Hogau  v.  Railroad  Co.,  53  Fed.  519.     And  see 


124  LIABILITY    OF    MASTER   TO    SERVANT.  (Ch.    3 

with  great  breadth:  If  a  servant  of  full  age  and  ordinary  intelli- 
gence, upon  being  required  by  his  master  to  perform  other  duties 
more  dangerous  and  complicated  than  those  embraced  in  his  orig- 
inal hiring,  undertakes  such  duties  knowing  their  dangerous  char- 
acter, although  unwillingly  and  from  fear  of  losing  his  employment, 
and  he  is  injured,  he  cannot  maintain  an  action  for  the  injury. 

SAME— SERVANT  AND  FELLOW  SERVANT. 

49.  A  servant,  on  entering  employment,  impliedly  agrees 
with  his  master  to  assume  all  ordinary  risks  inci- 
dent to  the  service,  including  that  of  negligence  on 
the  part  of  a  fellow  servant,  unless 

(a)  The  master  was  negligent  in  employing  the  fellow 

servant;  or  unless 

(b)  The  master's  personal  negligence  caused  or  co-oper- 

ated to  cause  the  injury  complained  of. 

The  earliest  reported  case  in  any  degree  embodying  the  present 
doctrine  of  fellow  servant  is  said  to  be  that  of  Priestley  v.  Fowler  l 
{1837),  but  the  first  clear  enunciation  of  the  rule  occurred  in  1841 
in  a  South  Carolina  case  (Murray  v.  South  Carolina  K.  Co.),2  and 
was  thoroughly  established  a  year  later  by  the  masterly  opinion  of 
Judge  Shaw  in  Farwell  v.  Boston  &  W.  R.  Co.3  The  federal  courts 
early  recognized  the  general  doctrine,  and  when  construing  the  com- 
mon law  of  a  particular  state  on  this  point,  they  regard  the  ques- 
tion as  one  of  construction  of  general  contract  of  service  and  not  as 

cases  collected  In  14  Am.  &  Eng.  Enc.  Law,  p.  859,  note  1.  But  compare 
Mahoney  v.  Dore,  155  Mass.  513,  30  N.  E.  366;  O'Maley  v.  Gaslight  Co.,  158 
Mass.  135,  32  N.  E.  1119.  In  Leary  v.  Railroad  Co.,  supra,  the  court  further 
adds:  "Morally  to  coerce  a  servant  to  an  employment,  the  risks  of  which  he 
does  not  wish  to  encounter,  by  threatening  otherwise  to  deprive  him  of  an 
employment  he  can  readily  and  safely  perform,  may  sometimes  be  harsh;  but, 
when  one  has  assumed  an  employment,  if  an  additional  and  more  dangerous 
duty  is  added  to  his  original  labor,  he  may  accept  or  refuse  it." 

§  49.  !  Priestley  v.  Fowler,  3  Mees.  &  W.  1.  In  Hutchinson  v.  Railway 
Co.  (1850)  5  Exch.  343,  the  English  courts  unreservedly  adopted  the  rule. 

2  1  McMul.  385. 

84  Mete.  (Mass.)  49. 


§  49)  SERVANT  AND  FELLOW  SERVANT.  125 

a  rule  of  property.     Under  such  circumstances,  therefore,  local  de- 
cisions do  not  control.4 

The  reason  for  the  doctrine  of  fellow  servant  is  founded  on  the 
same  basis  as  the  assumption  of  any  other  risk  incident  to  the  ac- 
cepted employment.  The  men  employed  in  building  a  house  or  dig- 
ging a  trench  are  as  truly  a  part  of  the  appliances  of  the  work  as 
a  scaffold  or  a  spade.  If  the  master  has  selected  them  in  sufficient 
number,  with  due  care,  he  has  performed  his  immediate  duty,  and 
the  outcropping  of  negligence  in  an  individual  servant  is  neither 
more  nor  less  than  a  human  defect,  which  could  not  be  foreseen 
or  guarded  against,  and  against  which  the  master  did  not  undertake 
to  protect  the  employ 6.  "The  general  rule,  resulting  from  considera- 
tions as  well  of  justice  as  of  policy,  is  that  he  who  engages  in  the 
employment  of  another  for  the  performance  of  specified  duties  and 
services,  for  compensation,  takes  upon  himself  the  natural  and  ordi- 
nary risks  and  perils  incident  to  the  performance  of  such  services^ 
and,  in  legal  presumption,  the  compensation  is  adjusted  accordingly. 
And  we  are  not  aware  of  any  principle  which  should  except  the 
perils  arising  from  the  carelessness  and  negligence  of  those  who  are 
in  the  same  employment.  These  are  perils  which  the  servant  is  likely 
to  know,  and  against  which  he  can  as  effectually  guard  as  the  mas- 
ter. They  are  perils  incident  to  the  service,  and  which  can  be  a» 
distinctly  foreseen  and  provided  for  in  the  rate  of  compensation 
as  .any  others.  *  *  *  The  master,  in  the  case  supposed,  is  not 
exempt  from  liability  because  the  servant  has  better  means  of  pro- 
viding for  his  safety,  when  he  is  employed  in  immediate  connection 
with  those  from  whose  negligence  he  might  suffer;  but  because  the 
implied  contract  of  the  master  does  not  extend  to  indemnify  the 
servant  against  the  negligence  of  any  one  but  himself,  and  he  is  not 
liable  in  tort,  as  for  the  negligence  of  his  servant,  because  the  per- 
son suffering  does  not  stand  towards  him  in  the  relation  of  a 
stranger.  Hence  the  separation  of  the  employment  into  different 
departments  cannot  create  that  liability  when  it  does  not  arise  from 

*  Newport  News  &  M.  V.  Co.  v.  Howe,  3  C.  C.  A.  121,  52  Fed.  362.  As  to 
Kentucky  rule  that  brakeman  and  engineer  are  not  fellow  servants,  see  Louis- 
ville &  N.  R.  Co.  v.  Brooks'  Adm'x.  83  Ky.  131  (in  this  case  the  negligence 
was  willful);  also  Louisville  &  N.  R.  Co.  v.  Brantley's  Adm'r,  96  Ky.  297,. 
28  S.  W.  477;  Jag.  Torts,  p.  1031. 


126  LIABILITY    OF  MASTER   TO   SERVANT.  (Ch.   3 

express  or  implied  contract,  or  from  a  responsibility  created  by  law 
to  third  persons  and  strangers  for  the  negligence  of  a  servant."  ' 

This  is  doubtless  the  only  satisfactory,  logical  basis  of  the  doc- 
trine, and  in  theory  it  is  very  simple  and  unobjectionable,  but,  when 
its  practical  application  is  attempted  in  the  multiplex  and  constantly 
changing  relations  and  gradations  of  employment,  its  difficulties  at 
once  appear.  Any  one  may  properly  assume  a  risk,  and  thus  bar 
his  right  to  recover  for  consequent  injury,  and  there  is  nothing 
peculiar  in  the  relation  of  master  and  servant  that  should  except  it 
from  the  operation  of  the  rule.  But  the  difficulty  arises  in  changing 
the  general  doctrine  of  the  assumption  of  risk  to  meet  the  changes 
in  the  relationship.  The  day  is  not  long  past  when  all  employments 
were  comparatively  simple.  Fellow  servants,  in  a  given  occupation, 
were  limited  in  number  and  well  known  in  the  community  where 
they  worked.  Hand  labor  was  the  rule,  machinery  the  exception, 
and  in  these  conditions  the  danger  of  being  injured  by  the  careless- 
ness of  a  co-employe'  was  a  risk  easily  measured,  and  properly  classed 
as  incident  to  the  service.  But,  while  the  rule  has  been  preserved 
by  the  conservatism  of  the  courts,  the  tremendous  mechanical  de- 
velopment of  the  last  few  decades  has  outstripped  the  conditions 
which  justified  its  adoption,  and  left  it  more  or  less  of  a  burden 
upon  the  great  class  of  employe's.  Some  relief  has  been  afforded  in 
a  few  states  by  exempting  certain  classes  of  servants,  notably  those 
of  railroads,  from  the  operation  of  the  rule,  and  in  some  courts  the 
assumption  of  risk  and  the  relationship  of  fellow  servant  are  treated 
as  questio'ns  of  fact  to  be  determined  by  the  jury.6 

The  hopeless  conflict  of  decisions  in  the  various  state  courts  and 
the  federal  courts  on  this  subject  is  not  due  to  any  lack  of  harmony 

o  Judge  Shaw  in  Farwell  v.  Railroad  Co.,  4  Mete.  (Mass.)  49.  See,  also, 
Baltimore  &  O.  R.  Co.  v.  Baugh,  149  U.  S.  368.  13  Sup.  Ct.  914,  where  the 
court  says:  "The  obvious  reason  for  this  exemption  is  that  he  has,  or  in  law 
is  supposed  to  have,  them  [the  dangers]  in  contemplation  when  he  engages  in 
the  service,  and  that  his  compensation  is  arranged  accordingly.  He  cannot, 
in  reason,  complain  if  he  suffers  from  a  risk  which  he  has  voluntarily  assumed, 
and  for  the  assumption  of  which  he  is  paid." 

e  Wenona  Coal  Co.  v.  Holmquist,  152  111.  581,  38  X.  E.  946;  Mexican  Nat. 
Ry.  Co.  v.  Finch,  8  Tex.  Civ.  App.  409,  27  S.  W.  1028;  Northern  Pac.  Coal  Co. 
v.  Richmond,  7  C.  C.  A.  485,  58  Fed,  756;  Lake  Erie  &  W.  R.  Co.  v.  Hid- 
dleton,  142  111.  550,  32  X.  E.  453. 


§  49)  SERVANT  AND  FELLOW  SERVANT.  127 

in  the  acceptation  of  the  general  doctrine  of  the  servant's  assump- 
tion of  the  risk  of  injury  from  consociation  with  other  negligent  em- 
ploye's, but  to  inability  to  agree  on  any  fixed,  general  rules  for  the 
determination  and  definition  of  the  relationship  of  fellow  servant 
At  the  outset,  however,  it  may  be  stated  that  all  courts  would  agree 
to  the  fundamental  proposition  that  the  act  of  any  employe",  done  in 
the  proper  discharge  of  the  master's  duty,  is  not  the  act  of  a  fellow 
servant,  but  of  the  master.  No  court  would,  in  the  absence  of  stat- 
ute, stop  short  of  this,  but  many  would  extend  the  liability  of  the 
master  on  much  broader  lines. 

To  attempt  a  definition  of  the  relationship  of  fellow  servant  would, 
for  the  reasons  stated,  be  absurd.  It  would  amount  to  nothing  more 
than  a  selection  from  the  many  conflicting  decisions  of  the  inter- 
pretation placed  on  the  term  by  one  particular  court,  to  the  exclu- 
sion of  all  others  which  had  not  adopted  a  similar  theory.  Thus,  in 
New  York  a  fireman  is  held  to  be  a  fellow  servant  of  the  conductor,7 
but  in  Michigan  a  common  laborer  is  not  a  fellow  servant  of  the  con- 
ductor of  a  construction  train.8  In  Virginia  a  conductor  is  not  a  fel- 
low servant  of  trainmen,9  while  in  the  federal  courts  the  relationship 
would  appear  to  depend  on  the  circumstances  of  the  individual  case 
and  the  character  of  the  duty  with  which  the  conductor  was  charged 
at  the  time  of  his  shortcoming.10 

In  the  discussion  of  this  subject  it  should  not  be  overlooked  that 
the  mere  establishment  of  the  fact  that  the  offending  employ^  was 
not  a  fellow  servant  of  the  injured  co-laborer  does  not,  ipso  facto, 
determine  the  master's  liability.  The  question  of  fellow  servant  be- 
ing eliminated,  it  then  becomes  necessary  to  ascertain  whether  the 
master,  or  the  representative  to  whom  his  authority  was  delegated, 
was  lacking  in  the  exercise  of  the  proper  degree  of  care  which  was 
demanded  in  the  circumstances. 

Primarily,  however,  and  as  a  condition  precedent  to  the  determina- 
tion of  the  relationship  of  the  different  employe's,  it  is  essential  that 
the  master's  duty  in  the  circumstances  should  be  clearly  settled. 

T  Slater  v.  Jewett,  85  N.  Y.  61. 

8  Chicago  &  N.  W.  Ry.  Co.  v.  Bayfield,  37  Mich.  205. 
»  Ayers'  Adm'x  v.  Railroad  Co.,  84  Va.  679,  5  S.  E.  582. 
10  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Ross.  112  U.  S.  377,  5  Sup.  Ct.  184;    Bal- 
timore &  O.  R.  Co.  v.  Eaugh,  149  U.  S.  368,  13  Sup.  Ct.  914. 


128  LIABILITY    OF   MASTER    TO    SERVANT.  (Ch.   5 

The  general  duties  of  the  master  to  his  servants  have  already  been 
enumerated, — furnishing  and  keeping  in  repair  proper  appliances  and 
instrumentalities,  hiring  competent  workmen  in  sufficient  number,, 
promulgating  and  enforcing  rules,  and  exercising  a  general  supervi- 
sion of  the  work,  etc.;  but  in  Ohio,  which  is  the  exponent  of  a 
clearly-defined  line  of  decisions  on  this  subject,  and  in  those  states- 
which  adopt  her  doctrine,  the  further  duty  of  a  detailed  supervision 
of  the  work  and  servants  is  imposed  on  the  master.  It  will  there- 
fore be  readily  seen  that  in  determining  the  relation  of  one  servant, 
as  a  conductor,  to  another,  as  a  brakeman,  the  question  of  detailed 
supervision, — in  other  words,  the  master's  duty,  in  the  circumstances, 
— would  be  all  important. 

Community  of  Service. 

To  establish  the  relation  of  fellow  servant,  it  is  invariably  essential 
that  community  of  service  should  exist;  that  both  servants  should 
be  employed  by  the  same  master.11  So,  if  the  wife  of  a  servant  is 
injured  by  a  co-employ  £  of  the  latter,  the  defense  of  fellow  servant 
cannot  be  maintained  by  the  master  against  the  claim  for  damages.12 
And  for  the  purposes  of  the  relation  he  is  to  be  deemed  the  master 
for  whose  benefit  the  servant  is  laboring  at  any  given  time.  Tims, 
a  servant,  placed  by  his  general  employer  temporarily  in  the  service 
of  another,  becomes  for  the  time  the  servant  of  the  latter,  and  as- 
sumes the  risk  of  injury  from  the  negligence  of  his  regular  employe's, 
and,  if  he  is  injured  by  their  carelessness,  he  can  recover  from  neither 
his  general  nor  temporary  master.13  And  in  some  instances  a  volun- 

11  Sullivan  v.  Railroad  Co.,  112  N.  Y.  643,  20  N.  E.  569;    Sanford  v.  Oil  Co., 
118  N.  Y.  571,  24  N.  E.  313;    Johnson  v.  Navigation  Co.,  132  N.  Y.  576,  30 
N.  E.  505;   Devlin  v.  Smith,  89  N.  Y.  470;   Catawissa  R.  Co.  v.  Armstrong,  49 
Pa.  St.  186;   Johnson  v.  Spear,  76  Mich.  139,  42  N.  W.  1092;    Hardy  v.  Rail- 
road Co.,  57  N.  J.  Law,  505,  31  Atl.  281;    Rehin  v.  Railroad  Co.,  164  Pa.  St. 
91,  30  Atl.  356;    Edward  Hines  Lumber  Co.  v.  Ligas,  68  111.  App.  523;    Chi- 
cago &  A.  R.  Co.  v.  O'Brien,  155  111.  630,  40  N.  E.  1023;    Wilson  v.  Railway 
Co.,  51  S.  C.  79,  28  S.  E.  91. 

12  Campbell  v.  Harris,  4  Tex.  Civ.  App.  636,  23  S.  W.  35;    Gannon  v.  Rail- 
road Co..  112  Mass.  234. 

is  Illinois  Cent.  R.  Co.  v.  Cox,  21  111.  20;  Hasty  v.  Sears,  157  Mass.  123,  31 
N.  E.  759;  Coyle  v.  Pierrepont,  33  Hun  (N.  Y.)  311;  Burke  v.  Refining  Co., 
11  Hun  (N.  Y.)  354;  The  Harold,  21  Fed.  428;  Ewan  v.  Lippiucott,  47  N.  J. 
Law,  l'J2. 


§    50;  COMMON    EMPLOYMENT    AS    TEST.  129 

teer  becomes  a  servant  of  the  person  for  whose  benefit  he  contributes 
his  service,  and  cannot  recover  against  the  employer  for  injuries  sus- 
tained by  the  negligence  of  his  fellow  workmen; 14  but,  if  the  service 
is  contributed  with  the  knowledge  and  consent  of  the  master,  he 
has  been  held  entitled  to  recover  for  such  injuries.15  Servants  of 
different  connecting  lines  of  railroad  are  not  fellow  servants,  no  mat- 
ter what  the  agreement  between  the  different  roads  may  be.16  And, 
in  general,  the  servants  of  one  employer,  and  those  of  another  en- 
gaged in  conducting  an  independent  piece  of  work,  although  laboring 
side  by  side,  are  not  fellow  servants.17 

50.  COMMON  EMPLOYMENT  AS  TEST— In  the  English, 
and  in  a  few  American,  courts,  the  test  of  common 
employment  is  applied  to  determine  the  relationship 
of  fellow  servant. 

To  attempt  to  define  or  test  the  relation  of  fellow  servant  by  the 
community  of  employment  would  seem  to  merely  increase  the  con- 

n  Potter  v.  Faulkner.  31  Law  J.  Q.  B.  30;  Millsaps  v.  Railway  Co.,  69  Miss. 
423,  13  South.  696;  Holmes  v.  Railway  Co.,  L.  R.  4  Exch.  254. 

is  Eason  v.  Railway  Co.,  65  Tex.  577;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  West, 
125  111.  320,  17  X.  E.  788. 

16  Sullivan  v.  Railroad  Co.,  112  N.  Y.  643,  20  N.  E.  569;  Catawissa  R.  Co, 
v.  Armstrong,  49  Pa.  St.  186;  Sawyer  v.  Railroad  Co.,  27  Vt  370;  Stetler  v. 
Railroad  Co..  46  Wis.  497,  1  X.  W.  112;  Smith  v.  Railroad  Co.,  19  X.  Y.  127; 
In  re  Merrill,  54  Vt.  200;  Connolly  v.  Davidson,  15  Minn.  519  (Gil.  428);  Taylor 
v.  Railroad  Co.,  45  Cal.  323;  Zeigler  v.  Railroad  Co.,  52  Conn,  543;  Gray  v. 
Railroad  Co.,  24  Fed.  168;  Strader  v.  Railroad  Co.,  157  N.  Y.  708,  52  N.  E. 
1126.  And  a  Pullman  car  porter  is  not  a  fellow  servant  of  switchman  in 
employ  of  railroad  company.  Hughson  v.  Railroad  Co.,  2  App.  D.  C.  98.  See, 
also,  Tierney  v.  Railroad  Co.,  85  Hun,  146,  32  N.  Y.  Supp.  627;  Bosworth  v. 
Rogers,  27  C.  C.  A.  385,  82  Fed.  975;  Strader  v.  Railroad  Co.,  157  N.  Y.  70S, 
52  X.  E.  1126. 

IT  Coughtry  v.  Woolen  Co.,  56  N.  Y.  124;  Hass  v.  Steamship  Co.,  88  Pa.  St. 
269;  Cunningham  v.  Railroad  Co.,  51  Tex.  503;  Goodfellow  v.  Railroad  Co., 
106  Mass.  461;  Lake  Superior  Iron  Co.  v.  Erickson,  39  Mich.  492;  Galveston, 
H.  &  S.  A.  Ry.  Co.  v.  Masterson  (Tex.  Civ.  App.)  51  S.  W.  1091.  But  see  Ewan 
v.  Lippincott,  47  X.  J.  Law,  192;  Johnson  v.  City  of  Boston,  118  Mass.  114; 
Illinois  Cent.  R.  Co.  v.  Cox,  21  111.  20;  Charles  v.  Taylor,  3  C.  P.  Div.  492, 
As  to  the  servants  of  a  subcontractor,  see  Curley  v.  Harris.  11  Allen,  112;  Wig- 
gett  v.  Fox.  11  Exch.  832;  Murray  v.  Currie,  L.  R.  6  C.  P.  24. 
BAR.XEG.— 9 


130  LIABILITY    OF    MASTER    TO    SERVANT.  (Ch.   3 

fusion  attending  this  subject  by  the  addition  of  a  new  phrase.  Yet 
the  English  courts  have  adopted  this  test,  and  hold  that  a  "common 
employment"  is  established  if  it  appears  that  both  servants  were  en- 
gaged in  one  general  business,  in  the  service  of  the  same  master,  with 
one  aim  or  result  in  view.1  Mr.  Pollock  says:  "All  persons  engaged 
under  the  same  employer,  for  the  purposes  of  the  same  business,  how- 
ever different  in  detail  those  purposes  may  be,  are  fellow  servants. 
The  kind  of  work  need  not  be  the  same;  the  employer  must  be.  They 
need  not  be  engaged  in  the  same  department  of  service,  but  they  must 
be  working  for  a  common  object."2  Thus,  it  was  held  that  a  general 
carpenter  in  the  employ  of  a  railroad  company,  who  was  injured 
while  at  work  on  a  shed  near  the  tracks,  by  the  careless  shifting  by 
porters  of  an  engine,  which  struck  and  knocked  down  the  scaffold 
on  which  he  was  standing,  could  not  recover  from  his  employer.3 
And  similar  decisions  are  not  wanting  in  our  own  courts.4  In  Illi- 
nois it  is  necessary,  to  constitute  co-employe's  "fellow  servants  in  the 
same  common  employment,"  either  that,  at  the  time  the  injury  is 
suffered,  they  should  be  actually  co-operating  in  the  achievement  of 
the  object  in  view,  or  should  be  in  constant,  habitual  association  in 
the  performance  of  their  ordinary  duties; 5  as  a  common  laborer  on 
a  wood  train  and  the  engineer  of  the  same  train.6  And  some  of  our 
ablest  American  text  writers  not  only  make  the  determination  of  the 
question  of  common  employment  of  supreme  importance,  but  even 
go  so  far  as  to  make  it  the  test  of  the  master's  exemption,  to  the 
exclusion  of  the  relation  of  fellow  servant.  Thus,  Shearman  and  Red- 
field  in  their  most  excellent  treatise  say:  "The  opinions  of  the  courts 

§  50.     i  Bartonshill  Coal  Co.  v.  Reid,  3  Macq.  H.  L.  Cas.  2G6. 

2  Pol.  Torts,  pp.  86-88. 

«  Morgan  v.  Railway  Co.,  5  Best  &  S.  570,  L.  R.  1  Q.  B.  149.  See,  also, 
Swainson  v.  Railway  Co.,  3  Exch.  Div.  341. 

*  Catawissa  R.  Co.  v.  Armstrong,  49  Pa.  St.  186;  Moynihan  v.  Hills  Co., 
146  Mass.  586-594,  16  N.  E.  574;  Webb  v.  Railway  Co.,  7  Utah,  363,  26  Pac. 
981;  Dixon  v.  Railroad  Co.,  109  Mo.  413,  19  S.  W.  412.  See,  also,  Griffiths  v. 
Wolfram,  22  Minn.  185;  Osborne  v.  Morgan,  130  Mass.  102. 

6  Chicago  &  N.  W.  R.  Co.  v.  Snyder,  117  111.  376,  7  N.  E.  604;  Honner  v. 
Railroad  Co.,  15  111.  550;  Illinois  Cent.  R.  Co.  v.  Cox,  21  111.  20;  Columbus, 
C.  &  I.  C.  Ry.  Co.  v.  Troesch,  68  111.  545;  Gartland  v.  Railroad  Co.,  67  111. 
498.  See,  also,  Chicago  &  A.  li.  Co.  v.  Kelly,  127  111.  637,  21  N.  E.  203;  Joliet 
Steel  Co.  v.  Shields.  134  111.  209,  25  N.  E.  069. 

e  Illinois  Cent.  R.  Co.  v.  Cox,  21  111.  20. 


§§    51-52)  VICE    PRINCIPAL.  131 

have  generally  failed  to  distinguish,  between  the  questions  of  what 
constitutes  a  fellow  servant  and  what  constitutes  common  employ- 
ment; and  in  many  cases  it  has  been  held  that  two  servants  of  the 
same  master  were  not  fellow  servants,  when  all  that  was  really 
meant  by  the  court  was  that  they  were  not  in  the  same  common  em- 
ployment."7 Whereby  it  would  appear  that  two  persons  may  be  fel- 
low servants,  and  yet  not  be  in  the  same  common  employment.  But, 
from  a  logical  as  well  as  a  common-sense  point  of  view,  common  em- 
ployment would  seem  to  be  a  mere  prerequisite,  a  condition  precedent 
to  the  establishment  of  the  relationship  of  fellow  servant,  and  not 
an  added  condition.  All  fellow  servants  must  be  in  the  same  com- 
mon employment,  but  not  all  in  the  same  common  employment  are 
necessarily  fellow  servants.  Whatever  the  proper  function  of  the 
term  may  be,  its  use  in  a  technical  sense  is  apt  to  breed  confusion, 
and  will  not  be  so  used  hereafter. 

51.  VICE   PRINCIPAL  —  In  American  courts  the  relation 

of  fellow  servant  is  commonly  tested  by  the  appli- 
cation of  the  doctrine  of  vice  principal. 

52.  A  vice  principal,  for  the  purposes  of  the  test,  is  one 

who,  regardless  of  grade,  is  actually  engaged  in  the 
discharge  of  some  positive  duty  owed  by  the  com- 
mon master  to  his  employes. 

In  determining  the  relation  of  fellow  servant,  and  the  consequent 
exemption  from  liability  of  the  master,  the  consideration  of  the  re- 
lation of  vice  principal  is,  in  a  majority  of  cases,  intimately  blended; 
for  the  circumstances  of  employment  of  two  men  may  in  every  way 
satisfy  the  requirements  of  the  relation  of  fellow  servants,  yet  if  it 
happen  that  the  offending  employe',  at  the  time  of  his  shortcoming, 
is,  with  authority,  attempting  to  discharge  a  master's  duty,  the  em- 
ployer would,  in  any  court,  be  held  liable  for  the  consequent  injury 
to  his  fellow. 

Prima  facie  all  who  enter  into  the  employment  of  a  single  master 
are  engaged  in  a  common  service,  and  are  fellow  servants.  A  fel- 
low servant  ceases  to  be  such,  and  becomes  a  vice  principal,  when 
he  is  clothed  with  power  of  control  and  direction,  and,  in  the  due 

T  Shear.  &  K.  Xeg.  (4th  Ed.)  §  234. 


132  LIABILITY   OF   MASTER   TO   SERVANT.  (Ch.   & 

exercise  of  such  power,  is  intrusted  with  the  performance  of  some 
positive  duty,  owed  to  other  employe's,  and  which  has  devolved  on 
him  from  the  master. 

A  master  assumes  the  duty  towards  his  servant  of  exercising 
reasonable  care  and  diligence  to  provide  the  servant  with  a  reasona- 
bly safe  place  in  which  to  work,  with  reasonably  safe  machinery, 
tools,  and  implements  to  work  with,  with  reasonably  safe  mate- 
rials to  work  upon,  and  with  suitable  and  competent  fellow  servants 
to  work  with  him;  and,  when  the  master  has  properly  discharged 
these  duties,  then,  at  common  law,  the  servant  assumes  all  the  risks 
and  hazards  incident  to  and  attendant  upon  the  exercise  of  the 
particular  employment  or  the  performance  of  the  particular  work, 
including  those  risks  and  hazards  resulting  from  the  possible  neg- 
ligence and  carelessness  of  his  fellow  servants  and  co-employe's.1 
In  other  words,  the  master  may  not  absolve  himself  from  the  per- 
formance of  a  positive  duty  by  delegating  it  to  a  subordinate.  Butr 
to  render  the  master  liable,  it  would  appear  that  the  act  complained 
of,  whether  it  be  that  of  himself  or  one  acting  for  him,  must  involve 
the  commission  of  some  positive  wrong,  the  breach  of  some  special 
duty.  If  he  discharges  all  that  may  be  called  positive  duty,  and 
is  himself  guilty  of  no  neglect,  it  would  seem  that  he  should  be 
absolved  from  all  personal  responsibility.2  And  so,  in  the  federal 
and  many  other  courts,  the  liability  of  the  master  is  not  made  to 
depend  in  any  manner  upon  the  grade  of  service  of  a  co-employe', 
but  upon  the  character  of  the  act  itself,  and  a  breach  of  a  positive 
obligation  of  the  master;  it  being  immaterial  how  or  by  whom  the 
master  undertakes  to  discharge  the  duty.3 

§§  51-52.  i  Atchison,  T.  &  S.  F.  R.  Co.  v.  Moore,  29  Kan.  632,  644;  Union 
Pac.  R.  Co.  v.  Doyle,  50  Neb.  555,  70  N.  W.  43;  Norfolk\&  W.  R.  Co.  v.  Houch- 
1ns'  Adm'r,  95  Va.  398,  28  S.  E.  578. 

2  Baltimore  &  O.  R.  Co.  v.  Bangh,  149  U.  S.  368,  13  Sup.  Ct.  914. 

»  Baltimore  &  O.  R.  Co.  v.  Baugh,  149  U.  S.  368,  13  Sup.  Ct.  914;  Chicago. 
M.  &  St.  P.  Ry.  Co.  v.  Ross,  112  U.  S.  377,  5  Sup.  Ct.  184;  Hough  v.  Railway 
Co.,  100  U.  S.  213;  Northern  Pac.  R.  Co.  v.  Herbert,  116  U.  S.  642,  6  Sup.  Ct. 
590;  Loughlin  v.  State,  105  N.  Y.  159,  11  N.  E.  371;  Slater  v.  Jewett,  85  N.  Y. 
61;  Filbert  v.  Canal  Co.,  121  N.  Y.  207,  23  N.  E.  1104;  O'Brien  v.  Dredging 
Co.,  53  N.  J.  Law,  291,  21  Atl.  324;  Potter  v.  Railroad  Co.,  46  Iowa,  399; 
State  v.  Malster,  57  Md.  287;  Lewis  v.  Seifert,  116  Pa.  St.  628,  11  Atl.  514; 
Gaffuey  v.  Railroad  Co.,  15  R.  I.  456,  7  Atl.  284. 


§§  51-52)  VICE  PRINCIPAL.  133 

Much  diversity  of  opinion  exists  in  different  courts  as  to  what 
constitutes  the  master's  duty,  the  breach  of  which,  by  his  representa- 
tives, will  render  him  liable.  In  any  instance,  the  determination  of 
this  question  is  of  the  first  and  vital  importance. 

In  Xew  York  the  gist  of  the  matter  consists  in  determining  whether 
the  duty  violated  by  the  negligent  servant  is  one  owed  by  him  as 
a  co-operative  or  in  a  capacity  representative  of  the  master.  His 
grade  or  authority  is  of  no  importance.  The  superintendent  is  not 
disqualified  by  his  position  from  being  a  fellow  servant  with  the 
lowest  grade  of  employe',  and,  if  he  negligently  performs  the  duty 
of  a  mere  employ^,  the  act,  however  careless  or  injurious,  is  that  of 
a  servant  only.*  If,  however,  the  act,  such  as  the  repair  of  ma- 
chinery, is  within  the  master's  duty,  and  is  negligently  performed 
by  any  employe'  charged  with  its  execution,  such  employe",  whatever 
his  grade,  is  a  vice  principal,  so  far  as  that  act  is  concerned.5  A 
similar  rule,  modified  in  some  instances  by  statute,  is  found  in  many 
other  states.6 

It  is  observable,  however,  that  those  who  are  working  together 

*  Filbert  v.  Canal  Co.,  121  X.  Y.  207,  23  N.  E.  1104;  Loughlin  v.  State,  105 
N.  Y.  159,  11  X.  E.  371;  Jenkinson  v.  Carlin,  10  Misc.  Rep.  22,  30  X.  Y.  Supp. 
530;  Kennedy  v.  Iron  Works,  12  Misc.  Rep.  336,  33  X.  Y.  Supp.  630;  Con  way 
v.  Railroad  Co.,  13  Misc.  Rep.  53,  34  N.  Y.  Supp.  113;  Fitzgerald  v.  Honkomp, 
44  111.  App.  365  (citing  Chicago  &  A.  R.  Co.  v.  May,  108  111.  288);  Stewart  v. 
Ferguson,  34  App.  Div.  515,  54  X.  Y.  Supp.  615;  Perry  v.  Rogers,  157  X.  Y. 
251,  51  X.  E.  1021. 

B  Scherer  v.  Manufacturing  Co.,  86  Hun,  37,  33  X.  Y.  Supp.  205;  Redington 
v.  Railway  Co.,  84  Hun,  231,  32  X.  Y.  Supp.  535;  Crowell  v.  Thomas,  18  App. 
Div.  520,  46  X.  Y.  Supp.  137;  Egan  v.  Railroad  Co.,  12  App.  Div.  556,  42  N.  Y. 
Supp.  188;  Strauss  v.  Manufacturing  Co.,  23  App.  Div.  1,  48  X.  Y.  Supp.  425; 
O'Connor  v.  Barker,  25  App.  Div.  121,  49  X.  Y.  Supp.  211. 

6  Smoot  v.  Railroad  Co.,  67  Ala.  13  (statute);  McLean  v.  Mining  Co.,  51 
Cal.  255  (statute);  Pennsylvania  Co.  v.  Whitcomb,  111  Ind.  212,  12  X.  E.  380; 
Doughty  v.  Log-Driving  Co.,  76  Me.  143;  Moynihan  v.  Hills  Co.,  146  Mass.  586, 
16  X.  E.  574  (statute);  Adams  v.  Cliffs  Co.,  78  Mich.  271,  288,  44  X.  W.  270; 
Lindvall  v.  Woods,  41  Minn.  212,  42  X.  W.  1020  (but  see  Blomquist  v.  Railway 
Co.,  60  Minn.  426,  62  X.  W.  818);  Xew  Orleans,  J.  &  G.  X.  R.  Co.  v.  Hughes, 
49  Miss.  258  (statute);  Jaques  v.  Manufacturing  Co.,  66  X.  H.  482,  22  Atl. 
552;  Ell  v.  Railroad  Co.,  1  X.  D.  336,  48  X.  W.  222;  International  &  G.  X. 
Ry.  Co.  v.  Ryan,  82  Tex.  565,  18  S.  W.  219  (statute);  Zintek  v.  Mill  Co.,  9  Wash. 
395.  37  Pac.  340;  Dwyer  v.  Express  Co.,  82  Wis.  307,  52  X.  W.  304  (statute); 
Thomas,  Xeg.  p.  S6G. 


134  LIABILITY    OF    MASTER    TO    SERVANT.  (Ch.    3 

in  making,  repairing,  or  altering  the  appliances  or  machinery  are 
engaged  in  a  common  service,  each  performing  the  master's  dutyr 
and,  inter  se,  are  fellow  servants.7 
The  Rule  in  Ohio. 

The  Ohio  rule  embodies  all  the  requirements  of  that  of  New  York, 
but  goes  further,  requiring  a  detailed  supervision  to  be  exercised 
over  servants.  The  heads  of  departments,  therefore,  even  in  minor 
subdivisions,  are  representative  of  the  master,  and  are  charged  with 
the  performance  of  the  duties  that  the  law  lays  upon  him.  This  is 
but  an  extension  of  the  duty,  not  of  the  principle.  The  distinguish- 
ing characteristic  of  the  Ohio  rule  consists  in  the  adaptation,  once 
a  vice  principal,  always  a  vice  principal.  That  is  to  say,  the  person 
in  control  cannot  in  any  way  devest  himself  of  his  representative 
capacity  and  accompanying  responsibility;  he  cannot  pull  a  rope 
or  lift  on  a  timber  as  an  ordinary  employe', — a  fellow  servant  with 
the  others, — but  the  act,  if  carelessly  or  unskillfully  done,  is  the  neg- 
ligence of  the  master,  and  carries  liability  for  consequent  injury.8 

In  Illinois,  mere  possession  of  authority  or  power  to  control  and 
discharge  does  not  create  the  relation  of  vice  principal.  There  must 
be  an  exercise  of  such  authority  and  power  at  the  particular  time 
in  question.  This  is  in  direct  contrast  to  the  Ohio  rule.  As  a  pre- 
requisite, however,  to  the  establishment  of  the  relation  of  fellow 
servant,  it  is  essential  that  the  employe's  of  the  same  master  should 
immediately  co-operate  in  the  same  line  of  employment,  to  the  end 
and  extent  that  they  may  have  opportunity  to  observe  and  avoid 
the  negligent  acts  of  each  other.  At  the  time  of  the  injury  they 
must  be  actually  co-operating  in  the  particular  business  in  hand, 
or  their  usual  duties  must  bring  them  into  habitual  consociation, 
so  that  they  can  exercise  an  influence  upon  each  other  promotive  of 
proper  caution  for  their  personal  safety.9  And  under  this  rule  a 

7  Murphy  v.  Railroad  Co.,  88  N.  Y.  146. 

s  Little  Miami  R.  Co.  v.  Stevens,  20  Ohio,  415;  Berea  Stone  Co.  v.  Kraft, 
31  Ohio  St.  287.  But  see  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Lamphere,  9  Ohio 
Cir.  Ct.  R.  2G3;  Baltimore  &  O.  R.  Co.  v.  Sutherland,  12  Ohio  Cir.  Ct.  R.  309; 
McCann  v.  Pennsylvania  Co.,  10  Ohio  Cir.  Ct.  R.  139,  3  Ohio  Dec.  444;  Lake 
Shore  &  M.  S.  Ry.  Co.  v.  Hunter,  13  Ohio  Cir.  Ct.  R.  441,  7  Ohio  Dec.  206. 

»  Chicago  &  X.  W.  Ry.  Co.  v.  Moranda,  108  111.  576;  North  Chicago  Rolling- 
Mill  Co.  v.  Johnson,  114  111.  57,  29  X.  E.  186;  Chicago  &  A.  R.  Co.  v.  O'Brien, 
155  111.  630,  40  X.  E.  1023;  Kolb  v.  Carrington,  75  111.  App.  159. 


§§    51-52)  VICE    PRINCIPAL.  135 

station  agent,  having  charge  of  defendant's  station,  grounds,  side 
tracks,  etc.,  is  not  a  fellow  servant  of  a  brakeman  on  a  pile-driver 
train,  so  as  to  prevent  a  recovery  by  the  latter  for  injuries  caused 
by  the  negligence  of  the  former  in  leaving  a  car  on  a  side  track  too 
close  to  the  main  track  to  allow  the  brakeman's  train  to  pass.10 
Whether  the  employe's  were  so  operating  and  consociating,  within 
the  rule  as  above  stated,  is  a  question  of  fact  for  the  jury.11  The 
rule  as  to  superior  and  subordinate  in  Illinois  is  thus  stated  by  the 
supreme  court:  "A  sen-ant  having  the  exclusive  control  over  other 
servants  under  a  common  master,  including  the  hiring  and  dis- 
charging, is,  in  the  exercise  of  those  powers,  the  representative  of 
the  master,  and  not  a  mere  fellow  servant.  The  mere  fact,  however, 
that  one  of  a  number  of  servants,  who  are  in  the  habit  of  working 
together  in  the  same  line  of  employment  for  a  common  master,  has 
power  to  control  and  direct  the  actions  of  the  others  with  respect 
to  such  employment,  will  not,  of  itself,  render  the  master  liable  for 
the  negligence  of  the  governing  servant,  resulting  in  an  injury  to  one 
of  the  others,  without  regard  to  the  circumstances.  On  the  other 
hand,  the  mere  fact  that  the  servant  exercising  such  authority  some- 
times or  generally  labors  with  the  others  as  a  common  hand  will 
not,  of  itself,  exonerate  the  master  from  liability  for  the  former's 
negligence  in  his  exercise  of  authority  over  others.  Every  case,  in 
this  respect,  must  stand  upon  its  own  circumstances.  If  the  negli- 
gence complained  of  consists  of  some  act  done  or  omitted,  by  one  hav- 
ing such  authority,  which  relates  to  his  duty  as  a  co-laborer  with  those 
under  his  control,  and  which  might  just  as  readily  have  happened 
with  one  of  them  having  no  such  authority,  then  the  common  master 
will  not  be  liable;  but  when  the  negligent  act  complained  of  arises 
out  of,  and  is  the  direct  result  of,  the  exercise  of  the  authority  con- 
ferred upon  him  by  the  master  over  his  co-laborer,  the  master  will 

10  St.  Louis,  A.  &  T.  H.  R.  Co.  v.  Biggs,  53  111.  App.  550;  West  Chicago 
St.  R.  Co.  v.  Dwyer,  57  111.  App.  440;  Chicago  &  A.  R.  Co.  v.  Swan,  TO  111. 
App.  331;  Illinois  C«nt.  R.  Co.  v.  McCowan,  Id.  345;  Chicago  &  A.  R.  Co.  v. 
House,  172  111.  601,  50  X.  E.  151. 

nAYestville  Coal  Co.  v.  Schwartz,  177  111.  272,  52  X.  E.  276;  Chicago  &  A. 
R.  Co.  v.  O'Brien,  155  111.  630,  40  X.  E.  1023;  Consolidated  Coal  Co.  v.  Schei- 
ber,  167  111.  539,  47  X.  E.  1052;  Mobile  &  O.  R.  Co.  v.  Massey,  152  111.  144, 
38  X.  E.  787;  Chicago  &  X.  W.  Ry.  Co.  v.  Moranda,  108  111.  576;  Chicago  & 
X.  W.  Ry.  Co.  v.  Tuite,  44  111.  App.  535. 


136  LIABILITY    OF    MASTEK    TO   SERVANT.  (Ch.   3 

be  liable.  To  illustrate  the  rule,  when  a  railway  company  confers 
upon  one  of  its  employe's  authority  to  take  charge  of  and  control  a 
gang  of  men  in  carrying  on  some  particular  branch  of  its  business, 
he  is  the  direct  representative  of  the  company,  and  all  commands 
given  by  him,  within  the  scope  of  his  authority,  are,  in  law,  the  com- 
mands of  the  company.  The  fact  that  he  may  have  an  immediate 
superior  standing  between  him  and  the  company  makes  no  differ- 
ence in  this  respect.  In  exercising  the  power,  he  does  not  stand  on 
the  same  plane  with  those  under  his  control.  His  position  is  one 
of  superiority.  When  he  gives  an  order  within  the  scope  of  his  au- 
thority, if  not  manifestly  unreasonable,  those  under  his  charge  are 
bound  to  obey,  at  the  peril  of  losing  their  situations;  and  such  com- 
mands are,  in  contemplation  of  law,  the  commands  of  the  company, 
and  hence  it  is  held  responsible  for  the  consequences."  12 

Tfe  Rule  in  Michigan. 

The  general  rule  in  Michigan  is  concisely  stated  in  Adams  v.  Iron 
Cliffs  Co.: 13  "All  who  serve  the  same  master,  work  under  the  same 
control,  derive  authority  and  compensation  from  the  same  common 
source,  and  are  engaged  in  the  same  general  business,  though  it  may 
be  in  different  grades  or  departments  of  it,  are  fellow  servants. 
*  *  *  Nor  does  it  make  any  difference  that  the  servant  guilty  of 
the  negligence  is  a  servant  of  superior  authority,  unless  such  superior 
servant  rises  to  the  grade  of  the  alter  ego  of  the  principal."  Thus, 
a  brakeman  is  not  a  fellow  servant  with  a  car  inspector; 14  a  train 
dispatcher,  having  absolute  control  of  the  running  of  trains,  is  not 
a  fellow  servant  of  those,  subject  to  his  directions,  who  are  engaged 
in  operating  the  trains.15  To  constitute  the  servant  vice  principal, 
his  control  and  superintendence  must  be  general,  and  it  matters  not 

«  Chicago  &  A.  R.  Co.  v.  May,  108  111.  288,  300.  See,  also,  Fraser  v.  Schroe- 
der,  163  111.  459,  45  X.  E.  288. 

is  78  Mich.  271,  288,  44  N.  W.  270,  276;  Smith  v.  Potter,  46  Mich.  263,  9 
N.  W.  273.  A  founder  having  charge  of  the  work  inside  a  blast  furnace  is  a 
fellow  servant  of  the  engineer  of  the  locomotive  used  in  moving  cars  on  the 
premises.  Adams  v.  Iron  Cliffs  Co.,  78  Mich.  271,  44  X.  W.  270.  Painters  are 
fellow  servants  of  carpenters  in  the  use  of  a  scaffolding  previously  constructed 
and  used  by  the  latter.  Hoar  v.  Merritt,  62  Mich.  3S6,  29  X.  W.  15;  Beesley 
v.  Wheeler,  103  Mich.  196,  61  X.  W.  658. 

i*  Morton  v.  Railroad  Co.,  81  Mich.  423,  46  X.  W.  111. 

icHunn  v.  Railroad  Co.,  78  Mich.  513,  44  X.  W.  502. 


§§    51— O 2)  VICE    PRINCIPAL.  137 

how  the  authority  devolved  on  him.16  But  he  must  have  full  and 
absolute  charge  over  both  the  work  and  the  men,  so  that  his  discre- 
tion and  control  dominate.17  A  special  authority,  giving  a  power  of 
supervision  over  a  limited  portion  of  the  work  only,  does  not  make 
the  qualified  superintendent  a  vice  principal,  or  change  his  relations 
to  his  co-laborers  so  as  to  make  the  master  responsible  for  injuries 
to  a  servant  resulting  from  his  negligence.18  It  would,  however,  ap- 
pear that  the  rule  of  fellow  servant  in  Michigan  has  no  application 
when  the  servant  is  performing  duties  outside  the  scope  of  his  em- 
ployment, or  when  he  is  sent  into  a  dangerous  place  or  exposed  to 
extraordinary  perils  by  one  in  authority  over  him.19  It  is,  moreover, 
well  settled  that  those  employed  to  provide  and  keep  in  repair  the 
places  or  supply  the  machinery  and  tools  for  labor  are  engaged  in 
•employments  distinctly  separate  from  those  who  use  the  places  and 
appliances  so  furnished,  and  are  not  fellow  servants  with  them.20 
But  the  decisions  are  not  so  clear  or  consistent  as  to  make  it  certain 
that  this  rule  applies  to  those  charged  with  keeping  in  repair  the  in- 
strumentalities other  than  the  place  where  the  labor  is  to  be  per- 
formed.21 
The  Rule  in  Massachusetts. 

In  Massachusetts  the  rule  is  involved  in  great  perplexity.  In  Hoi- 
den  v.  Fitchburg  R.  Co.,22  the  court  says:  "It  is  well  settled  in  this 
•commonwealth  and  in  Great  Britain  that  the  rule  of  law  that  a 
.servant  cannot  maintain  an  action  against  his  master  for  an  injury 

i«  Ryan  v.  Bagaley,  50  Mich.  179,  15  X.  W.  72. 

IT  Slater  v.  Chapman,  67  Mich.  523.  35  X.  W.  106;  not  vice  principal,  Schroe- 
der  v.  Railroad  Co.,  103  Mich.  213,  61  X.  W.  663;  Morch  v.  Railway  Co.,  113 
Mich.  154,  71  X.  W.  464. 

is  Quincy  Min.  Co.  v.  Kitts,  42  Mich.  34,  3  X.  W.  240;  Ryan  v.  Bagaley,  50 
Mich.  ISO,  15  X.  W.  72. 

i»  Chicago  &  X.  W.  Ry.  Co.  v.  Bayfield,  37  Mich.  210. 

20  Roux  v.  Lumber  Co.,  94  Mich.  607,  54  N.  W.  492,  approving  Sadowski  v. 
<3ar  Co.,  84  Mich.  100,  47  X.  W.  598. 

21  Roux  v.  Lumber  Co.,  94  Mich.  607,  54  X.  W.  492,  partially  adopting  the 
rule  as  stated  in  Xorthern  Pac.  R.  Co.  v.  Herbert,  116  U.  S.  653,  6  Sup.  Ct. 
590;    Ashman  v.  Railway  Co.,  90  Mich.  567,  51  X.  W.  645,  approvingly  citing 
Ford  v.  Railroad  Co.,  110  Mass.  240.     And  see  Hoar  v.  Merritt,  62  Mich.  330, 
29  X.  W.  15;    Van  Dusen  v.  Letellier,  78  Mich.  492,  44  X.  W.  572;    Dewev  v. 
Bailway  Co.,  97  Mich.  329,  56  X.  W.  756;    Frazee  v.  Stott  (Mich.)  79  X.  W.  896. 

22  129  Mass.  208,  271. 


138  LIABILITY    OF    MASTER    TO    SERVANT.  (Oh.   3- 

caused  by  the  fault  or  negligence  of  a  fellow  servant  is  not  confined 
to  the  case  of  two  servants  working  in  company,  or  having  opportu- 
nity to  control  or  influence  the  conduct  of  each  other,  but  extends 
to  every  case  in  which  the  two,  deriving  their  authority  and  their 
compensation  from  the  same  source,  are  engaged  in  the  same  busi- 
ness, though  in  different  departments  of  duty;  *  *  *  and  it  makes 
no  difference  that  the  servant  whose  negligence  causes  the  injury  is  a 
submanager  or  foreman,  of  higher  grade  or  greater  authority  than 
the  plaintiff."  And  again,  in  Ford  v.  Fitchburg  R.  Co.:23  "The 
agents  who  are  charged  with  the  duty  of  supplying  safe  machinery  are 
not,  in  the  true  sense  of  the  rule  relied  on,  to  be  regarded  as  fellow 
servants  of  those  who  are  engaged  in  operating  it.  They  are  charged, 
with  the  master's  duty  to  his  servant.  They  are  employed  in  distinct 
and  independent  departments  of  service,  and  there  is  no  difficulty 
in  distinguishing  them,  even  when  the  same  person  renders  service 
by  turns  in  each,  as  the  convenience  of  the  employer  may  require. 
In  one  the  master  cannot  escape  the  consequences  of  the  agent's  neg- 
ligence; if  the  servant  is  injured  in  the  other,  he  may."  The  lan- 
guage employed  in  these  cases  has  occasioned  much  perplexity  and: 
concern  in  subsequent  decisions  by  the  same  court,  and  its  excuse  has 
been  attempted  in  Johnson  v.  Boston  Tow-Boat  Co.24  and  subsequent 

23  110  Mass.  240,  260. 

24  135  Mass.  209.    And  see  Dowd  v.  Railroad  Co.,  162  Mass.  185,  38  N.  E. 
440;    McPhee  v.  Scully,  163  Mass.  216,  39  N.  E.   1007;    Trimble  v.  Machine 
Works,  172  Mass.  150,  51  X.  E.  463;     Meehan  v.  Manufacturing  Co.  (Mass.) 
52  N.  E.  518;    McCoy  v.  Town  of  Westboro  (Mass.)  52  N.  E.  1064;    Whelton 
v.  Railway  Co.  (Mass.)  52  X.  E.  1072.    Inspector  of  cars  is  fellow  servant  with 
brakeman.     Bowers  v.  Railroad  Co.,  162  Mass.  312,  38  N.  E.  508.     In  John- 
son v.  Tow-Boat  Co.,  135  Mass.  209,  the  court  says:     "When  a  master  has 
furnished  suitable  structures,  means,  and  appliances  for  the  prosecution  of  a 
business,  all  persons  employed  by  him  in  carrying  on  the  business  by  the 
use  of  the  means  provided,   including  those  who  use  the  means  directly  in; 
the  prosecution  of  the  business,  those  who  maintain  them  in  a  condition  to- 
be  used,  and  those  who  adapt  them  to  use  by  new  appliances  and  adapta- 
tions incidental  to  their  use,  are  fellow  servants  in  the  general  employment 
and  business.     One  employed  in  the  care,  supervision,  and  keeping  in  ordi- 
nary repair  of  the  means  and  appliances  used  in  a  business  is  engaged  in  the 
common  service."    See,  also,  rule  as  stated  in  Moynihan  v.  Hills  Co.,  146  Mass, 
SSu.  1G  X.  E.  574,  wherein  it  is  stated  that  the  master's  duty  is  to  "main- 
tain," as  well  as  "provide,"  suitable  machinery,  appliances,  etc.    The  Massa- 


§§    51-52)  VICE    PRINCIPAL.  1391 

cases,  with  the  result  that  the  whole  subject  is  involved  in  still 
greater  doubt  and  uncertainty. 

Tlie  Rule  in  Pennsylvania. 

The  rule  in  Pennsylvania  is  in  many  respects  similar  to  that  in 
Massachusetts;  the  test  of  fellow  servant  being  the  employment  by 
the  same  master  in  common  service,  without  regard  to  immediate 
superiority  of  grade,  although  the  representative  having  absolute  and 
entire  charge  is  vice  principal. 

In  Lewis  v.  Seifert,25  the  rule  is  stated  in  the  following  language: 
"It  is  sufficient  if  they  are  in  the  same  employment  by  the  same 
master,  engaged  in  the  same  common  work,  and  performing  duties 
and  services  for  the  same  general  purpose.  To  constitute  such  fel- 
low servants,  they  need  not  at  the  time  be  engaged  in  the  same  par- 
ticular work."  But  it  will  be  at  once  discerned  that  this  enunciation 
is  too  broad  and  vague  to  determine  any  particular  doctrine,  or'throw 
any  light  on  the  exact  position  held  by  the  court.  As  pointed  out 
by  Judge  Bailey,26  it  is  not  exactly  true  that  those  servants  who  are 
employed  by  the  same  master,  engaged  in  the  common  work,  and  per- 
forming duties  for  the  same  general  purpose,  are  fellow  servants. 
Their  employment  for  the  purposes  named  is  a  prerequisite  to  their 

chusetts  statute  determining  the  liability  of  masters  in  certain  cases  is  in 
part  as  follows  (chapter  270,  Laws  1887):  "Section  1.  Where,  after  the  pas- 
sage of  this  act,  personal  injury  is  caused  to  an  employs,  who  is  himself  In 
the  exercise  of  due  care  and  diligence  at  the  time:  (1)  By  reason  of  any 
defect  in  the  condition  of  the  ways,  works,  or  machinery  connected  with  or 
used  in  the  business  of  the  employer,  which  arose  from,  or  had  not  been 
discovered  or  remedied  owing  to,  the  negligence  of  the  employer,  or  of  any 
person  in  the  service  of  the  employer,  and  intrusted  by  him  with  the  duty 
of  seeing  that  the  ways,  works,  or  machinery  were  in  proper  condition;  (2) 
by  reason  of  negligence  of  any  person  in  the  service  of  the  employer,  in- 
trusted with  and  exercising  superintendence,  whose  sole  duty  is  that  of 
superintendence;  (3)  by  reason  of  the  negligence  of  any  person  in  the  serv- 
ice of  the  employer  who  has  the  charge  or  control  of  any  signal,  switch,  loco- 
motive, engine,  or  train  upon  a  railroad,— the  employe,  or,  in  case  the  injury 
result  in  death,  the  legal  representatives  of  such  employe,  shall  have  the 
same  right  of  compensation  and  remedies  against  the  employer  as  if  the 
employ^  had  not  been  an  employs  of  nor  in  the  service  of  the  employer,  nor 
engaged  in  its  work." 

25  116  Pa.  St.  G2S,  11  Atl.  514. 

*e  Bailey,  Mast.  Ldab.  p.  2t>5. 


140  LIABILITY    OF   MASTER    TO    SERVANT.  (Ch.   3 

•classification  as  fellow  servants,  but  not  all  thus  employed  are  fel- 
low servants.  This  is  recognized  by  the  court  later  on  in  the  same 
decision  quoted  above:  "There  are  some  duties  which  the  master 
owes  to  the  servant,  and  from  which  he  cannot  relieve  himself,  ex- 
cept by  performance.  Thus,  the  master  owes  every  employe"  the  duty 
of  providing  a  reasonably  safe  place  in  which  to  work,  and  reasonably 
safe  instruments,  tools,  and  machinery  with  which  to  work.  This  is 
a  direct,  personal,  and  absolute  obligation;  and,  while  the  master 
may  delegate  these  duties  to  an  agent,  such  agent  stands  in  the 
place  of  his  principal,  and  the  latter  is  responsible  for  the  acts  of  such 
agent;  and  where  the  master  or  superior  places  the  entire  charge  of 
his  business,  or  a  distinct  branch  of  it,  in  the  hands  of  an  agent  or 
subordinate,  exercising  no  discretion  or  oversight  of  his  own,  the 
master  is  held  liable  for  the  negligence  of  such  agent  or  subordi- 
nate." 2T  The  law  as  enunciated  in  this  case  may  probably  be  taken 
as  the  accepted  doctrine  in  Pennsylvania,  although  earlier  and  con- 
flicting decisions  have  not  been  expressly  overruled.28  These  earlier 
decisions  clearly  indicate  that  the  master  may  relieve  himself  of  re- 
sponsibility in  supplying  machinery  and  appliances,  however  defective 
and  unsuitable  they  may  be  in  fact,  provided  he  intrusts  their  struc- 
ture or  selection  to  competent  and  skillful  persons;  but,  as  they  are 
no  longer  cited  with  approval,  the  disapproval  of  their  principles 
may  be  taken  as  implied. 

The  doctrine  of  superior  and  subordinate  is  not  recognized  in  this 
state. 

The  Rule  in  Minnesota. 

In  Minnesota  the  duty  of  providing  reasonably  safe  places,  appli- 
ances, and  instrumentalities  cannot  be  delegated  by  the  master  so  as 

27  Lewis  v.  Seifert,  116  Pa.  St.  628,  11  Atl.  514;    Xoll  v.  Railroad  Co.,  163 
Pa.  St.  504,  30  Atl.  157;    Rehm  v.  Railroad  Co.,  164  Pa.  St.  91,  30  Atl.  35G; 
Prevost  v.  Refrigerating  Co.,  185  Pa.   St.  617,  40  Atl.  88.     But  where  the 
control  is  qualified,  see  Schroeder  v.  Railroad  Co.,  103  Mich.  213,  61  N.  W.  663. 

28  Ardeseo  Oil  Co.  v.  Gilson,  63  Pa.  St.  150.    The  court  illustrates  the  prin- 
ciple by  saying:     "If  I  employ  a  well-known  and  reputable  machinist  to  con- 
struck  a  steam  engine,  and  it  blows  up  from  bad  materials  or  unskillful  work, 
I  am  not  responsible  for  any  injury  which  may  result,  whether  to  my  own 
servant  or  to  a  third  person."     Mansfield  Coal  &  Coke  Co.  v.  McEnery,  91  Pa. 
St.  185. 


§§    51—52)  VICE    PRINCIPAL.  141 

to  relieve  him  of  responsibility.29  Differences  of  grade  or  authority 
do  not  determine  the  relation  of  fellow  servant.30  The  employ  6  be- 
comes vice  principal  only  when  he  is  intrusted  with  the  performance 
of  some  absolute  duty  of  the  master  himself,  such  as  the  provision, 
of  proper  instrumentalities  with  which  the  servant  is  to  perform  his 
work.31  But  in  the  construction  of  appliances  or  instrumentalities 
all  those  who  are  engaged  in  the  work  are  fellow  servants,  regardless 
of  grade  or  department  of  service;  such  building  or  construction  be- 
ing regarded  as  a  part  of  the  regular  work  which  they  are  hired  ta 
perform.  The  leading  case  on  this  point  is  that  of  Lindvall  v. 
Woods,32  in  wThich  a  foreman  and  laborers  under  him  were  held  to  be 
fellow  servants  while  engaged  in  building  a  trestle  to  be  used  in  fur- 
therance of  the  general  business.  In  the  later  case  of  Blomquist  v. 
Chicago,  M.  &  St.  P.  Ky.  Co.,33  the  foreman  of  a  crew  of  laborers  en- 
gaged in  constructing  bridge  piers,  and  having  authority,  in  the  ab- 
sence of  defendant's  engineer,  to  superintend  the  work,  was  held  to- 
be  a  vice  principal;  but  in  the  latter  case  the  violation  of  defendant's 
duty  consisted  in  the  negligence  of  the  foreman  in  adjusting  and  pla- 
cing the  derrick,  by  means  of  which  the  stones  were  raised  into  place,, 
the  plaintiff  being  absent  when  the  derrick  was  so  placed. 

The  master  also  owes  the  duty  to  his  servants  of  reasonable  in- 
spection and  maintenance  of  appliances  and  instrumentalities,34  and 
those  engaged  in  making  repairs  are  representative  of  the  master. 

The  Minnesota  statute  defining  vice  principals  is  nothing  more  than 

29  Lindvall  v.  Woods,  41  Minn.  212,  42  N.  W.  1020;  Brown  v.  Railway  Co.,. 
31  Minn.  553,  IS  N.  W.  834.  But  car  inspector  is  not  fellow  servant  of  brake- 
man.  Fay  v.  Railway  Co.,  30  Minn.  231,  15  N.  W.  241;  Tierney  v.  Railway 
Co.,  33  Minn.  311,  23  N.  W.  229;  Macy  v.  Railroad  Co.,  35  Minn.  200,  28  N.  W. 
•240. 

so  Lindvall  v.  Woods,  41  Minn.  212,  42  N.  W.  1020;  Fraker  v.  Railway 
Co.,  32  Minn.  54,  19  X.  W.  349;  Brown  v.  Railway  Co.,  31  Minn.  553,  18  N. 
W.  S34;  Tierney  v.  Railway  Co.,  33  Minn.  311,  23  N.  W.  229. 

31  Brown  v.  Railway  Co.,  31  Minn.  553,  18  X.  W.  834;    Stahl  v.  City  of 
Dulutli,  71  Minn.  341,  74  N.  W.  143;    Lundberg  v.  Shevlin-Carpenter  Co.,  6& 
Minn.  135,  70  N.  W.  1078;   Holman  v.  Kempe,  70  Minn.  422,  73  N.  W.  186. 

32  41  Minn.  212,  42  N.  W.  1020;    Fraser  v.  Lumber  Co.,  45  Minn.  235,  4T 
N.  W.  785. 

as  60  Minn.  426,  62  X.  W.  818. 

s*  Anderson  v.  Railroad  Co.,  39  Minn.  523,  41  N.  W.  104. 


142  LIABILITY    OF   MASTER   TO   SERVANT.  (Ch.   3 

.an  enunciation  of  the  doctrine  which  has  long  been  the  well-settled 
common  law  of  the  state.35 

53.  RULE  IN  FEDERAL  COURTS  —  The  master  is  re- 
sponsible for  any  breach  of  a  positive  duty  owed 
by  him  to  his  employes,  and  the  grade  of  the  serv- 
ant through  -whose  immediate  negligence  the  breach 
occurs  is  immaterial  in  determining  the  master's 
liability,  although  a  distinction  is  drawn  between 
servants  exercising  no  supervision  and  those  whose 
duties  are  those  solely  of  superintendence  and  direc- 
tion. 

64.  The  master  cannot  avoid  responsibility  in  the  delega- 
tion of  his  duty  as  to  premises,  appliances,  and  ma- 
chinery. 

The  case  of  Baltimore  &  O.  R  Co.  v.  Baugh  *  enunciates  the  law 
on  this  subject  as  now  settled  in  the  federal  courts.  In  that  case 
the  fireman  on  a  locomotive  engine  was  injured  by  reason  of  the 
negligence  of  the  engineer  in  charge  of  the  engine,  which  was  run- 
ning without  any  train  attached.  The  judgment  of  the  trial  court, 
-allowing  recovery,  was  reversed,  the  court  holding  that  the  engineer 
and  fireman  were  fellow  servants.  The  doctrine  therein  stated  as 
the  correct  rule  for  determining  the  relation  of  vice  principal  is  a 
modification  of  that  found  in  the  earlier  case  of  Chicago,  M.  &  St. 
P.  Ry.  Co.  v.  Boss,2  decided  in  1884.  The  latter  case  involved  a  some- 
what radical  departure  from  the  former  holdings  of  this  court  on  the 
same  subject.  Ross  was  a  locomotive  engineer,  and  was  injured 
through  the  negligence  of  the  conductor  in  charge  of  the  train  to 

so  Whenever  a  master  or  employer  delegates  to  any  one  the  performance 
•of  his  duties  which  he,  as  master  or  employer,  owes  to  his  servants,  or  any 
part  or  portion  of  such  duties,  the  person  so  delegated,  while  so  acting  for 
his  master  or  employer,  shall  be  considered  the  vice  principal  and  represent- 
ative of  the  master.  Chapter  173,  §  2,  Gen.  Laws  1895. 

§§  53-54.     i  149  U.  S.  308,  13  Sup.  Ct.  914. 

2  112  U.  S.  377,  5  Sup.  Ct  184.  In  support  of  its  position  in  this  case  the 
court  cites  Little  Miami  R.  Co.  v.  Stevens.  20  Ohio,  415;  Cleveland,  C.  &  C.  R. 
•Co.  v.  Keary,  3  Ohio  St  201;  Louisville  &  N.  R.  Co.  v.  Collins,  2  Duv.  (Ky.)  114. 


§§  53-54)  RULE  IN  FEDERAL  COURTS.  143 

•which  his  engine  was  attached.  His  recovery  in  the  lower  court 
was  affirmed,  it  being  distinctly  held  that  the  conductor  and  en- 
gineer were  not  fellow  servants.  The  opinion  of  the  court,  writ- 
ten by  Mr.  Justice  Field,  who  also  wrote  'a  dissenting  opinion  in  the 
Baugh  Case,  clearly  holds  the  individual  train  to  be  a  distinct  and 
separate  department  of  the  general  service,  of  which  department  the 
conductor  had  the  sole  and  exclusive  charge.  The  court  says:  "We 
agree  with  them  in  holding — and  the  present  case  requires  no  fur- 
ther decision — that  the  conductor  of  a  railway  train,  who  commands 
its  movements,  directs  when  it  shall  start,  at  what  stations  it  shall 
stop,  at  what  speed  it  shall  run,  and  has  the  general  management 
of  it,  and  control  over  the  persons  employed  upon  it,  represents  the 
company,  and,  therefore,  that  for  injuries  resulting  from  his  negli- 
gent acts  the  company  is  responsible.  If  such  a  conductor  does  not 
represent  the  company,  then  the  train  is  operated  without  any  rep- 
resentative of  its  owners."  And  again:  "There  is,  in  our  judg- 
ment, a  clear  distinction  to  be  made,  in  their  relation  to  their  com- 
mon principal,  between  the  servants  of  a  corporation  exercising  no 
supervision  over  others  engaged  with  them  in  the  same  employment, 
and  agents  of  the  corporation  clothed  with  the  control  and  man- 
agement of  a  distinct  department,  in  which  their  duty  is  entirely 
that  of  direction  and  superintendence."  As  abstract  propositions 
of  law,  the  foregoing  statements  are  not  open  to  objection,  but  the 
hypothesis  deprives  them  of  value  when  applied  to  the  case  under 
consideration.  Is  it  true  that  the  conductor  has  absolute  direction 
and  control  of  his  train,  as  assumed  in  the  opinion?  Is  he  not  sub- 
ject to  the  limitations  of  time-tables,  train  dispatchers,  special  orders, 
and  fixed  rules?  Has  he  any  discretion  as  to  the  speed  of  the  train, 
or  at  what  stations  it  shall  stop?  It  is  to  be  observed  that  the 
language  of  the  court  is  general,  and  not  limited  to  the  particular 
circumstances  of  this  case. 

In  Baltimore  &  0.  R.  Co.  v.  Baugh  the  opinion  in  the  Ross  Case 
is  fully  discussed,  and  the  extremity  of  its  doctrine  palpably  cur- 
tailed. The  court  says:  "And  from  this  natural  separation  flows 
the  rule  that  he  who  is  placed  in  charge  of  such  separate  branch 
of  the  service,  who  alone  superintends  and  has  the  charge  of  it, 
is  as  to  it  in  the  place  of  the  master.  But  this  is  a  very  differ- 


144  LIABILITY   OF    MASTER    TO    SERVANT.  (Ch.   & 

ent  proposition  from  that  which,  affirms  that  each  separate  piece 
of  work  in  one  of  these  branches  of  service  is  a  distinct  depart- 
ment, and  gives  to  the  individual  having  control  of  that  piece  of 
work  the  position  of  vice  principal  or  representative  of  the  master. 
Even  the  conclusion  enunciated  in  the  Eoss  Case  was  not  reached 
by  a  unanimous  court,  four  of  its  members  being  of  opinion  that  it 
was  carrying  the  thought  of  a  distinct  department  too  far  to  hold 
it  applicable  to  the  management  of  a  single  train." 

That  the  court  gives  no  weight  to  the  bare  relation  of  superior  and 
subordinate  appears  from  the  following  excerpt  from  the  same  opin- 
ion :  "But  the  danger  from  the  negligence  of  one  specially  in  charge 
of  the  particular  work  is  as  obvious  and  as  great  as  from  that  of  those 
who  are  simply  co-workers  with  him  in  it.  Each  is  equally  with  the 
other  an  ordinary  risk  of  the  employment.  If  he  is  paid  for  one,  he 
is  paid  for  the  other;  if  he  assumes  the  one,  he  assumes  the  other. 
Therefore,  so  far  as  the  matter  of  the  master's  exemption  from  liabil- 
ity depends  upon  whether  the  negligence  is  one  of  the  ordinary  risks 
of  the  employment,  and,  thus  assumed  by  the  employe',  it  includes  all 
co-workers  to  the  same  end,  whether  in  control  or  not.  But  if  the 
fact  that  the  risk  is  or  is  not  obvious  does  not  control,  what  test  or 
rule  is  there  which  determines?  Kightfully,  this:  There  must  be 
seme  personal  wrong  on  the  part  of  the  master, — some  breach  of 
positive  duty  on  his  part.  If  he  discharges  all  that  may  be  called 
positive  duty,  and  is  himself  guilty  of  no  neglect,  it  would  seem  as 
though  he  were  absolved  from  all  responsibility,  and  that  the  party 
who  caused  the  injury  should  be  himself  alone  responsible.  It  may 
be  said  that  this  is  only  passing  from  one  difficulty  to  another,  as  it 
leaves  still  to  be  settled  what  is  positive  duty  and  what  is  personal 
neglect;  and  yet,  if  we  analyze  these  matters  a  little,  there  will  ap- 
pear less  difficulty  in  the  question.  Obviously,  a  breach  of  positive 
duty  is  personal  neglect;  and  the  question  in  any  given  case  is,  there- 
fore, what  is  the  positive  duty  of  the  master?" 

Respecting  the  duty  of  the  master  to  furnish  and  maintain  reason- 
ably safe  premises,  instrumentalities,  and  machinery  for  the  perform- 
ance of  the  work,  this  court  is  in  harmony  with  New  York  rule. 
These  are  positive  duties,  and  cannot  be  delegated  by  the  master  so 
as  to  relieve  him  from  liability  for  their  improper  performance.  The 
persons  intrusted  with  their  performance  represent  the  master,  and 


§§  53-54)  RULE  IN  FEDERAL  COURTS.  145 

are  vice  principals,  and  not  fellow  servants,  as  to  those  engaged  in 
the  use  of  the  instrumentalities  thus  furnished.3 

Other  states  adhere  to  various  combinations  and  adaptations  of  the 
foregoing  principles  in  determining  the  relations  of  vice  principal 
and  fellow  servant.4 

3  Northern  Pac.  R.  Co.  v.  Herbert,  116  TJ.  S.  650,  6  Sup.  Ct.  590;  Baltimore 
&  O.  R.  Co.  v.  Baugh,  149  U.  S.  3G8,  13  Sup.  Ct.  914.  See,  also,  on  general 
subject  of  fellow  servants  and  vice  principals:  Locomotive  engineer  not  a  fellow 
servant  of  hostler's  helper  engaged  in  switching  engines  in  the  railroad  yard. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Mulligan,  14  C.  C.  A.  547,  67  Fed.  569.  The 
duty  of  opening  and  closing  a  switch  in  the  ordinary  operation  of  a  railroad 
is  not  one  of  the  personal  duties  of  the  master.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  v.  Xeedham,  11  C.  C.  A.  56,  63  Fed.  107.  An  engineer  in  temporary 
charge  of  a  train  cannot  waive  a  rule  prohibiting  coupling,  etc.,  without  a 
stick.  Richmond  &  D.  R.  Co.  v.  Finley,  12  C.  C.  A.  595,  63  Fed.  228.  A 
telegraph  operator  and  an  engineer  of  train  on  same  road  are  fellow  servants, 
Baltimore  &  O.  R.  Co.  v.  Camp.  13  C.  C.  A.  233,  65  Fed.  952;  but  a  train 
dispatcher  is  not  a  fellow  servant  of  an  engineer  of  a  train  on  his  division, 
Baltimore  &  O.  R.  Co.  v.  Camp,  supra;  Clyde  v.  Railroad  Co.,  69  Fed.  673; 
nor  is  a  car  inspector  a  fellow  servant  of  a  brakeman,  Atchison,  T.  &  S.  F. 
R.  Co.  v.  Myers,  11  C.  C.  A.  439,  63  Fed.  793;  Terre  Haute  &  I.  R.  Co.  v. 
Mansberger,  12  C.  C.  A.  574,  65  Fed.  196.  Section  men  and  laborers  on  repair 
trains  are  fellow  servants,  and  employer  is  not  liable  to  one  for  injuries 
caused  by  negligence  of  another,  though  such  other  has  control  over  a  gang 
of  men.  Thorn  v.  Pittard,  10  C.  C.  A.  352,  62  Fed.  232.  Negligence  of  con- 
ductor in  transmitting  order  of  train  master  to  yard  master,  whereby  brake- 
man was  injured,  is  the  negligence  of  fellow  servant.  Martin  v.  Railway 
Co.,  65  Fed.  384.  Mine  inspector  not  fellow  servant  of  miner.  Gowen  v. 
Bush,  22  C.  C.  A.  196,  76  Fed.  349.  Mate  of  vessel  not  fellow  servant  of 
workman  on  wharf.  Hermann  v.  Mill  Co.,  71  Fed.  853.  Engine  hostler  and 
car  accountant  not  fellow  servants.  Northern  Pac.  R.  Co.  v.  Craft,  16  C.  O. 
A.  175,  69  Fed.  124.  Section  foreman  and  section  hands  are  fellow  servants. 
Northern  Pac.  R.  Co.  v.  Charless,  162  U.  S.  359,  16  Sup.  Ct.  848.  Foreman 
in  charge,  and  personally  assisting  laborers,  a  fellow  servant.  Coulson  v. 
Leonard,  77  Fed.  538. 

*  ALABAMA:  Smoot  v.  Railroad  Co.,  67  Ala.  13;  Mobile  &  O.  R.  Co.  v. 
Thomas,  42  Ala.  672;  Mobile  &  M.  R.  Co.  v.  Smith,  59  Ala.  245;  Tyson  v. 
Railroad  Co.,  61  Ala.  554;  Mobile  &  O.  R.  Co.  v.  George,  94  Ala.  199,  10  South. 
145;  Kansas  City,  M.  &  B.  R.  Co.  v.  Crocker,  95  Ala.  412,  11  South.  262; 
Alabama  G.  S.  R.  Co.  v.-  Davis  (Ala.)  24  South.  862;  Buckalew  v.  Railroad 
Co.,  112  Ala.  146,  20  South.  606;  Postal  Tel.  Cable  Co.  v.  Hulsey,  115  Ala.  193, 
22  South.  854.  ARIZONA:  Hobson  v.  Railroad  Co.,  11  Pac.  545;  South- 
ern Pac.  Co.  v.  McGill,  44  Pac.  302.  ARKANSAS:  St.  Louis,  I.  M.  &  S.  Ry. 
BAR.NEG.— 10 


146  LIABILITY    OF    MASTER   TO    SERVANT.  (Ch.   3 


CONCURRENT  AND  CONTRIBUTORY  NEGLIGENCE. 

65.  Although  the  servant  assumes  the  risk  of  the  negli- 
gence of  his  fellow  servants,  he  does  not  assume 
that  of  his  master;  and,  if  the  master's  negligence 
concurs  -with  that  of  a  fellow  servant  to  produce 
the  injury  complained  of,  the  servant  may  recover 
therefor,  provided  the  servant's  own  negligence  does 
not  proximately  contribute  to  the  injurious  result. 

Co.  v.  Rice,  51  Ark.  467,  11  S.  W.  699;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Gaines, 
46  Ark.  555;  Bloyd  v.  Railway  Co.,  58  Ark.  66,  22  S.  W.  1089;  St.  Louis  S.  W. 
Ry.  Co.  v.  Henson,  61  Ark.  302,  32  S.  W.  1079;  Hunter  v.  Bridge,  29  C.  C. 
A.  206,  85  Fed.  379;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Rickman,  45  S.  W.  56. 
CALIFORNIA:  Civ.  Code,  §  1970;  McLean  v.  Mining  Co.,  51  Cal.  255;  McKune 
v.  Railroad  Co.,  66  Cal.  302,  5  Pac.  482;  Beeson  v.  Mining  Co.,  57  Cal.  20; 
Stephens  v.  Doe,  73  Cal.  27,  14  Pac.  378,  approving  McLean  v.  Mining  Co., 
supra;  Trask  v.  Railroad  Co.,  63  Cal.  96;  Bums  v.  Sennett,  44  Pac.  1068; 
Foley  v.  Horseshoe  Co.,  115  Cal.  184,  47  Pac.  42;  Donnelly  v.  Bridge  Co., 
117  Cal.  417,  49  Pac.  559.  COLORADO:  Wells  v.  Coe,  9  Colo.  159,  11  Pac.  50; 
Orman  v.  Mannix,  17  Colo.  564,  30  Pac.  1037.  The  principle  of  the  "Ross 
Case"  is  approved  in  the  following:  Colorado  M.  Ry.  Co.  v.  Naylon,  17 
Colo.  501,  30  Pac.  249;  Denver,  S.  P.  &  P.  R.  Co.  v.  Discoll,  12  Colo.  520,  21 
Pac.  708;  Grant  v.  Varney,  21  Colo.  329,  40  Pac.  771;  Colorado  Coal  &  Iron 
Co.  v.  Lamb,  6  Colo.  App.  255,  40  Pac.  251;  Denver  Tramway  Co.  v.  O'Brien,  8 
Colo.  App.  74,  44  Pac.  766.  CONNECTICUT:  Darrigan  v.  Railroad  Co.,  52  Conn. 
285;  Wilson  v.  Linen  Co.,  50  Conn.  433;  McElligott  v.  Randolph,  61  Conn. 
157,  22  Atl.  1094;  Sullivan  v.  Railroad  Co.,  62  Conn.  209,  25  Atl.  711.  DELA- 
WARE: Foster  v.  Pusey,  8  Houst.  168,  14  Atl.  545;  Wheatley  v.  Railroad 
Co.,  1  Marv.  305,  30  Atl.  660.  FLORIDA:  Parrish  v.  Railroad  Co.,  28  Fla.  251, 
9  South.  696.  GEORGIA:  Code  1882,  §§  2083,  2202,  3036;  Baker  v.  Rail- 
road Co.,  68  Ga.  699;  Western  &  A.  R.  Co.  v.  Adams,  55  Ga.  279;  Keith 
v.  Coal  Co.,  81  Ga.  49,  7  S.  E.  166;  McGovern  v.  Manufacturing  Co.,  80  Ga. 
227,  5  S.  E.  492;  Augusta  Factory  v.  Barnes,  72  Ga.  217;  Central  R.  Co. 
v.  De  Bray,  71  Ga.  406;  Atlanta  Cotton  Factory  Co.  v.  Speer,  69  Ga.  137; 
Georgia  Railroad  &  Banking  Co.  v.  Miller,  90  Ga.  571,  16  S.  E.  939;  Gates  v. 
Itner,  104  Ga.  679,  30  S.  E.  884;  Boswell  v.  Barnhart,  96  Ga,  521,  23  S.  E. 
414;  Taylor  v.  Marble  Co.,  99  Ga.  512,  27  S.  E.  768;  Blackman  v.  Electric  Co., 
102  Ga.  64,  29  S.  E.  120.  INDIANA:  Krueger  v.  Railway  Co.,  Ill  Ind.  51,  11 
N.  E.  957;  Pennsylvania  Co.  v.  Whitcomb,  111  Ind.  212,  12  N.  E.  380;  Indi- 
ana Car  Co.  v.  Parker,  100  Ind.  181;  Atlas  Engine  Works  v.  Randall,  Id. 
293;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Buck,  116  Ind.  566,  19  N.  E.  453;  Jus- 


§    55)  CONCURRENT   AND    CONTRIBUTORY    NEGLIGENCE.  147 

It  has  already  been  stated  that  the  master  cannot  avail  himself  of 
the  defense  of  fellow  servant,  if  the  negligent  employe'  causing  the 
injury  had  been  carelessly  or  improperly  selected  or  hired,  and,  fur- 
thermore, that  this  defense  cannot  be  urged  whenever  the  offending 

tice  v.  Pennsylvania  Co.,  130  Ind.  321,  30  X.  E.  303;  Clarke  v.  Same,  132 
Ind.  199,  31  X.  E.  808  (see,  also,  cases  cited  in  Bailey,  Mast.  Liab.  p.  279,  etc.); 
Xeutz  v.  Coke  Co.,  139  Ind.  411,  38  N.  E.  324,  39  X.  E.  147;  City  of  Leb- 
anon v.  McCoy,  12  Ind.  App.  500,  40  N.  E.  700;  Indiana,  I.  &  I.  Ry.  Co.  v. 
Snyder,  140  Ind.  647,  39  N.  E.  912;  Ohio  &  M.  Ry.  Co.  v.  Stein,  140  Ind.  61, 
.39  X.  R  24G;  Louisville,  X.  A.  &  C.  Ry.  Co.  v.  Isom,  10  Ind.  App.  691,  38 
X.  E.  423;  Hodges  v.  Wheel  Co.  (Sup.)  52  X.  E.  391;  Perigo  v.  Brewing  Co. 
(App.)  52  X.  E.  462;  Peirce  v.  Oliver,  18  Ind.  App.  87,  47  N.  R  485;  Ameri- 
can Telephone  &  Telegraph  Co.  v.  Bower,  20  Ind.  App.  32,  49  N.  E.  182; 
Louisville,  X.  A.  &  C.  Ry.  Co.  v.  Heck,  151  Ind.  292,  50  X.  R  988.  IOWA:  The 
liability  of  railways  for  negligence  in  their  operation  is  regulated  by  stat- 
ute (Code  1S73,  §  1307);  but  the  statute  has  received  a  rather  limited  con- 
struction as  to  what  constitues  the  "operation"  of  a  railroad.  Stroble  v. 
Railway  Co..  70  Iowa,  555,  31  X.  W.  03;  Foley  v.  Railway  Co.,  64  Iowa,  644, 
21  X.  W.  124;  Malone  v.  Railway  Co.,  65  Iowa,  417,  21  X.  W.  756.  The 
plaintiffs  in  following  cases  held  to  have  been  engaged  in  "operating,"  within 
the  statute:  Schroeder  v.  Railroad  Co.,  47  Iowa,  375;  McKnight  v.  Con- 
struction Co.,  43  Iowa,  406;  Frandsen  v.  Railroad  Co.,  36  Iowa,  372;  Deppe 
v.  Same,  Id.  52;  Pyne  v.  Railroad  Co.,  54  Iowa,  223,  6  X.  W.  281.  Other- 
wise in  the  following:  Malone  v.  Railway  Co.,  65  Iowa,  417,  21  X.  W.  756; 
Potter  v.  Railroad  Co.,  46  Iowa,  399;  Foley  v.  Same,  64  Iowa,  644,  21  X. 
W.  124;  Luce  v.  Railway  Co.,  67  Iowa,  75,  24  X.  W.  600;  Stroble  v.  Rail- 
way Co.,  70  Iowa,  555,  31  X.  W.  63.  Mere  superiority  of  grade  is  imma- 
terial, Peterson  v.  Mining  Co.,  50  Iowa,  673;  but  a  person  charged  with  the 
•exercise  of  primary  duties  represents  the  master,  Brann  v.  Railroad  Co.,  53 
Iowa,  595,  6  X.  W.  5;  Theleman  v.  Moeller,  73  Iowa,  108,  34  X.  W.  765; 
Hathaway  v.  Railway  Co.,  92  Iowa,  337,  60  X.  W.  651;  Blazenic  v.  Coal 
•Co.,  102  Iowa,  706,  72  X.  W.  292;  Fosburg  v.  Fuel  Co.,  93  Iowa,  54,  61  X. 
W.  400;  Hathaway  v.  Railway  Co.,  92  Iowa,  337,  60  X.  W.  651.  KAXSAS: 
Hannibal  &  St.  J.  Ry.  Co.  v.  Fox,  31  Kan.  586,  3  Pac.  320;  Atchison,  T.  & 
S.  F.  R.  Co.  v.  McKee,  37  Kan.  592,  15  Pac.  484;  St.  Louis  &  S.  F.  Ry.  Co. 
T.  Weaver,  35  Kan.  412,  11  Pac.  408;  Missouri  Pac.  Ry.  Co.  v.  Dwyer,  36 
Kan.  58,  12  Pac.  352;  Walker  v.  Gillett,  59  Kan.  214,  52  Pac.  442.  KEX- 
TUCKY:  Louisville  &  X.  R.  Co.  v.  Collins,  2  Duv.  117;  Louisville,  C.  &  L.  R. 
•Co.  v.  Cavens'  Adm'r,  9  Bush,  566;  Illinois  Cent  R.  Co.  v.  Hilliard,  37  S. 
W.  75;  Cincinnati,  X.  O.  &  T.  P.  Ry.  Co.  v.  Palmer,  98  Ky.  382,  33  S.  W. 
199;  Ashland  Coal,  Iron  &  Railway  Co.  v.  Wallace's  Adm'r,  42  S.  W.  744; 
Edmondson  v.  Railway  Co.,  49  S.  W.  200,  448.  LOUISIAXA:  The  Ross  Case 
followed:  Towns  v.  Railway  Co.,  37  La.  Ann.  632,  55  Am.  Rep.  508;  Fareu 


148  LIABILITY    OF    MASTER   TO   SERVANT.  (Ch.   3- 

employ^  was  at  the  time  of  the  injury  engaged  in  the  discharge  of  a 
primary  duty  owed  by  the  master  to  all  his  servants,  or  was,  in  other 
words,  a  vice  principal;  but  the  true  rule  is  much  broader  and  more 

v.  Sellers,  39  La.  Ann.  1011,  3  South.  363;  Mattise  v.  Manufacturing  Co., 
46  La.  Ann.  1535,  16  South.  400.  MAINE:  Doughty  v.  Log  Driving  Co..  70 
Me.  143;  Shanny  v.  Androscoggin  Mills,  66  Me.  426;  Wormell  v.  Railroad 
Co.,  79  Me.  397,  10  Atl.  49.  MARYLAND:  Wonder  v.  Railroad  Co.,  32  Md.  411; 
Hanrathy  v.  Railway  Co.,  46  Md.  280;  Yates  v.  Iron  Co.,  69  Md.  370,  16 
Atl.  280;  Baltimore  Elevator  Co.  v.  Neal,  65  Md.  438,  5  Atl.  338;  Norfolk  & 
W.  R.  Co.  v.  Hoover,  79  Md.  253,  29  Atl.  994.  MISSISSIPPI:  Code  1892,  §  3559; 
New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Hughes,  49  Miss.  258;  Howd  v.  Rail- 
road Co.,  50  Miss.  178;  Illinois  Cent.  R.  Co.  v.  Jones,  16  South.  300;  MIS- 
SOURI: Dayharsh  v.  Railroad  Co.,  103  Mo.  570,  15  S.  W.  554;  Miller  v.  Railway 
Co.,  109  Mo.  350,  19  S.  W.  58;  Moore  v.  Railway  Co.,  85  Mo.  588;  Smith  v.  Rail- 
way Co.,  92  Mo.  359,  4  S.  W.  129;  Foster  v.  Railway  Co.,  115  Mo.  165,  21  S.  W. 
916.  Track  repairer  and  engineer  are  not  fellow  servants,  Schlereth  v.  Rail- 
way Co.,  115  Mo.  87,  21  S.  W.  1110;  but  brakeman  upon  one  and  fireman 
upon  another  freight  train  are  fellow  servants,  Relyea  v.  Railroad  Co.,  112 
Mo.  86,  20  S.  W.  480;  Sheehan  v.  Prosser,  55  Mo.  App.  569;  Musick  v. 
Packing  Co.,  58  Mo.  App.  322;  Jones  v.  Railway  Co.,  125  Mo.  666,  28  S.  W. 
883;  Rodney  v.  Railroad  Co.,  127  Mo.  676,  28  S.  W.  887;  Card  v.  Eddy,  129' 
Mo.  510,  28  S.  W.  753,  979;  Donahoe  v.  City  of  Kansas  City,  136  Mo.  657, 
38  S.  W.  571;  Bradley  v.  Railway  Co.,  138  Mo.  293,  39  S.  W.  763.  MONTANA: 
Regulated  by  statute.  Comp.  St.  1888,  p.  817,  §  697.  NEBRASKA:  Chicago, 
St.  P.,  M.  &  O.  Ry.  Co.  v.  Lundstrom,  16  Neb.  254,  20  N.  W.  200;  Burlington. 
&  M.  R.  R.  Co.  v.  Crockett,  19  Neb.  138,  26  N.  W.  921;  Sioux  City  &  P.  R. 
Co.  v.  Smith,  22  Neb.  775,  36  N.  W.  285;  Chicago,  B.  &  Q.  R.  Co.  v.  How- 
ard, 45  Neb.  570,  63  N.  W.  872;  Omaha  &  R.  V.  Ry.  Co.  v.  Crow,  54  Neb. 
747,  74  N.  W.  1066;  Chicago,  B.  &  Q.  R.  Co.  v.  Kellogg,  54  Neb.  127,  74  N. 
W.  454;  Omaha  &  R.  V.  Ry.  Co.  v.  Krayenbuhl,  48  Neb.  553,  67  N.  W.  447;  Un- 
ion Pac.  R.  Co.  v.  Doyle,  50  Neb.  555,  70  N.  W.  43;  Clark  v.  Hughes,  51  Neb. 
780,  71  N.  W.  776.  NEW  HAMPSHIRE:  Jaques  v.  Manufacturing  Co.,  66  N. 
H.  482,  22  Atl.  552.  NEW  JERSEY:  Rogers  Locomotive  &  M.  Works  v.  Hand, 
50  N.  J.  Law,  464,  14  Atl.  760;  McAndrews  v.  Burns,  39  N.  J.  Law,  117; 
Ewan  v.  Lippincott,  47  N.  J.  Law,  192.  The  separate  department  rule  does 
not  obtain,  and  those  engaged  in  making  instrumentalities  may  well  be  fel- 
low servants  of  those  who  are  to  use  them.  Rogers  Locomotive  &  M.  Works 
v.  Hand,  50  N.  J.  Law,  464,  14  Atl.  766;  Harrison  v.  Railway  Co.,  31  N.  J. 
Law,  293.  Nor  does  mere  superiority  of  grade  affect  the  relation.  O'Brien  v. 
Dredging  Co.,  53  N.  J.  Law,  291,  21  Atl.  324;  Hardy  v.  Railroad  Co.,  57  N. 
J.  Law,  505,  31  Atl.  281;  Ingebretsen  v.  Steamship  Co.  (Err.  &  App.)  31  Atl. 
619.  NEW  MEXICO:  Cerrillos  Coal  R.  Co.  v.  Deserant,  49  Pac.  807.  NORTH 
CAROLINA:  Ross  Case,  112  U.  S.  377,  5  Sup.  Ct  184,  followed;  Mason  v.  Rail- 


§    55)  CONCURRENT    AND   CONTRIBUTORY    NEGLIGENCE.  149 

comprehensive  than  this,  and  it  may  be  stated  generally  that  when- 
ever the  master  has  been  guilty  of  the  breach  of  a  personal  duty  to  a 

road  Co.,  Ill  N.  C.  482,  16  S.  E.  698;  Pattern  v.  Railroad  Co.,  96  N.  C.  455, 
1  S.  E.  863.  Superiority  of  grade  no  test.  Webb  v.  Railroad  Co.,  97  X.  C. 
387,  2  S.  E.  440;  Logan  v.  Railroad  Co.,  116  N.  C.  940,  21  S.  E.  959;  Shadd  v. 
Railroad  Co.,  96  N.  C.  968,  21  S.  E.  554;  Pleasants  v.  Railroad  Co.,  121  N. 
C.  492,  28  S.  E.  267.  NORTH  DAKOTA:  The  rule  of  the  federal  courts  is  quite 
closely  followed.  Ell  v.  Railroad  Co.,  1  N.  D.  336,  48  N.  W.  222.  Primary 
duties  cannot  be  delegated  so  as  to  relieve  the  master  of  liability.  Ell  v. 
Railroad  Co.,  supra.  OREGON:  Miller  v.  Southern  Pac.  Co.,  20  Or.  285,  26 
Pac.  70;  Carlson  v.  Railway  Co.,  21  Or.  450,  28  Pac.  497.  Switchman  is  fel- 
low servant  of  train  operatives.  Miller  v.  Southern  Pac.  Co.,  20  Or.  285,  26 
Pac.  70.  The  question  of  superiority  of  grade  does  not  appear  to  be  fully 
settled.  Knahtla  v.  Railway  Co.,  21  Or.  136,  27  Pac.  91;  Fisher  v.  Railway 
Co.,  22  Or.  533,  30  Pac.  429;  Mast  v.  Kern,  54  Pac.  950.  RHODE  ISLAND: 
Separate  department  rule  does  not  obtain.  Brodeur  v.  Valley  Falls  Co.,  16 
R.  1.  448,  17  Atl.  54.  Station  agent  held  to  be  fellow  servant  of  brakeman 
injured  through  negligence  of  former.  Gaffney  v.  Railroad  Co.,  15  R.  I.  456, 
7  Atl.  284,  following  Brown  v.  Railway  Co.,  31  Minn.  553,  18  N.  W.  834, 
and  Hodgkins  v.  Railroad  Co.,  119  Mass.  419;  Parker  v.  Railroad  Co.,  18  R. 
I.  773,  30  Atl.  849;  Morgridge  v.  Telephone  Co.,  39  Atl.  328.  SOUTH  CAROLINA: 
Master  is  not  relieved  of  responsibility  by  delegating  primary  duties.  Calvo 
v.  Railroad  Co.,  23  S.  C.  526;  Couch  v.  Railroad  Co.,  22  S.  a  557;  Coleman 
v.  Railroad  Co.,  25  S.  C.  446.  Doctrine  of  Ross  Case  is  fully  indorsed.  Boat- 
wright  v.  Railroad  Co.,  25  S.  C.  128;  Whaley  v.  Bartlett,  42  S.  C.  454,  20 
S.  E.  745;  Wilson  v.  Railway  Co.,  51  S.  C.  79,  28  S.  E.  91.  TENNESSEE:  Sep- 
arate department  theory  recognized  as  to  railroads.  Nashville  &  C.  R.  Co. 
v.  Carroll,  6  Heisk.  347;  Knoxville  Iron  Co.  v.  Dobson,  7  Lea,  367.  Supe- 
riority of  grade  is,  in  some  degree,  a  test,  Knoxville  Iron  Co.  v.  Dobson, 
7  Lea,  367;  Louisville  &  N.  R.  Co.  v.  Lahr,  86  Tenn.  335,  6  S.  W.  663;  East 
Tennessee  &  W.  N.  O.  R.  Co.  v.  Collins,  85  Tenn.  227,  1  S.  W.  883;  a  crew 
who  negligently  loaded  a  car  with  lumber  are  fellow  servants  of  those  who 
operate  the  train,  Louisville  &  N.  R.  Co.  v.  Gower,  85  Tenn.  465,  3  S.  W. 
824;  conductor  being  in  charge  of  train,  engineer  is  fellow  servant  of  brake- 
man, East  Tennessee  V.  &  G.  Ry.  Co.  v.  Smith,  89  Tenn.  114,  14  S.  W.  1077; 
and  brakemen,  brake  repairers,  and  car  inspectors  are  fellow  servants,  Nash- 
ville, C.  &  St.  L.  Ry.  Co.  v.  Foster,  10  Lea,  351;  Nashville,  C.  &  St.  L.  R. 
Co.  v.  Gann  (Sup.)  47  S.  W.  493;  National  Fertilizer  Co.  v.  Travis  (Sup.)  49 
S.  W.  832;  Knox  v.  Railway  Co.  (Sup.)  47  S.  W.  491.  TEXAS:  Doctrine  not 
well  settled  in  this  state.  International  &  G.  N.  Ry.  Co.  v.  Ryan,  82  Tex.  565, 
18  S.  W.  221;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Wells  (Sup.)  16  S.  W.  1025;  Mis- 
souri Pac.  Ry.  Co.  .v.  Williams,  75  Tex.  4,  12  S.  W.  835;  Texas  &  P.  Ry. 
Co.  v.  Reed,  88  Tex.  439,  31  S.  W.  1058;  San  Antonio  &  A.  P.  Ry.  Co.  v. 
McDonald  (Civ.  App.)  31  S.  W.  72;  San  Antonio  &  A.  P.  Ry.  Co.  v.  Kel- 


150  LIABILITY    OF   MASTER   TO   SERVANT.  (Ch.  3 

servant,  whereby  injury  has  resulted,  he  cannot  defend  by  saying  that 
the  negligence  of  a  fellow  servant  also  contributed  to  produce  the 

ler,  11  Tex.  Civ.  App.  569,  32  S.  W.  847;  Texas  &  N.  O.  Ry.  Co.  v.  Bin- 
gle  (Civ.  App.)  41  S.  W.  90;  San  Antonio  &  A.  P.  Ry.  Co.  v.  Taylor  (Civ. 
App.)  35  S.  W.  855;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Warner,  89  Tex.  475,  35  S. 
W.  364;  Southern  Pac.  Go.  v.  Ryan  (Civ.  App.)  29  S.  W.  527;  International 
&  G.  N.  Ry.  Co.  v.  Sipole,  id.  686;  San  Antonio  &  A.  P.  Ry.  Co.  v.  Bowles 
(Civ.  App.)  30  S.  W.  89;  Same  v.  Reynolds,  Id.  846;  Texas  &  X.  O.  R.  Co. 
v.  Tatman,  10  Tex.  Civ.  App.  434,  31  S.  W.  333;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Calvert,  11  Tex.  Civ.  App.  297,  32  S.  W.  246;  San  Antonio  &  A.  P.  Ry.  Co. 
v.  Harding,  11  Tex.  Civ.  App.  497,  33  S.  W.  373;  Sanner  v.  Railway  Co. 
(Civ.  App.)  43  S.  W.  533;  Terrell  Compress  Co.  v.  Arrington  (Civ.  App.)  48 
S.  W.  59;  Houston  &  T.  C.  R.  Co.  v.  Patterson,  Id.  747;  Same  v.  Stuart,  Id. 
799.  UTAH:  Anderson  v.  Mining  Co.,  16  Utah,  28,  50  Pac.  815;  Dryburg  v. 
Milling  Co.,  55  Pac.  367.  VERMONT:  Respondea.t  superior  does  not  apply 
where  an  order  is  negligently  given  by  a  servant  in  command  to  an  inferior 
servant  Davis  v.  Railroad  Co.,  55  Vt.  84.  The  master  is  jealously  held  to 
the  performance  of  his  primary  duties,  the  early  decision  in  Hard  v.  Railroad 
Co.,  32  Vt.  473,  being  disapproved.  VIRGINIA:  Norfolk  &  W.  R.  Co.  v.  Don- 
nelly's Adm'r,  88  Va.  853,  14  S.  E.  692;  Richmond  &  D.  R.  Co.  v.  Norment, 
84  Va.  167,  4  S.  E.  211;  Moon's  Adm'r  v.  Railroad  Co.,  78  Va.  745;  Ayer's 
Adm'x  v.  Railroad  Co.,  84  Va.  679,  5  S.  E.  582;  Johnson's  Adm'x  v.  Railroad 
Co.,  84  Va.  713,  5  S.  E.  707;  Richmond  &  D.  R.  Co.  v.  Williams,  86  Va.  165T 
9  S.  E.  990;  Norfolk  &  W.  R.  Co.  v.  Brown,  91  Va.  668,  22  S.  E.  496;  Mc- 
Donald's Adm'r  v.  Railroad  Co.,  95  Va.  98,  27  S.  E.  821;  Norfolk  &  W.  R. 
Co.  v.  Houchins'  Adm'r,  95  Va.  398,  28  S.  E.  578;  Richmond  Locomotive 
Works  v.  Ford,  94  Va.  627,  27  S.  E.  509;  Moore  Lime  Co.  v.  Richardson's 
Adm'r,  95  Va.  326,  28  S.  E.  334.  WASHINGTON:  Sayward  v.  Carlson,  1  Wash. 
St.  29,  23  Pac.  830;  Zintek  v.  Mill  Co.,  6  Wash.  178,  32  Pac.  997;  Ogle  v.  Jones, 
16  Wash.  319,  47  Pac.  747;  McDonough  v.  Railway  Co.,  15  Wash.  244,  46 
Pac.  334;  Bateman  v.  Railway  Co.,  54  Pac.  996;  Hughes  v.  Improvement 
Co.,  55  Pac.  119.  WEST  VIRGINIA:  If  the  inferior  servant  is  substantially 
under  the  control  of  the  superior,  they  are  not  fellow  servants.  Madden's 
Adm'r  v.  Railroad  Co.,  28  W.  Va.  610.  A  car  checker  and  engineer  operating 
switch  engine  in  same  yard  are  fellow  servants,  Beuhring's  Adm'r  v.  Railway 
Co.,  37  W.  Va.  502,  16  S.  E.  435;  but  brakeman  and  conductor  on  different 
trains  are  not  fellow  servants,  Daniel's  Adm'r  v.  Railway  Co.,  36  W.  Va.  397, 
15  S.  E.  162;  Johnson  v.  Railway  Co.,  36  W.  Va.  73,  14  S.  E.  432;  Flannegan 
v.  Railway  Co.,  40  W.  Va.  436,  21  S.  E.  1028;  Jackson  v.  Railroad  Co.,  43 
W.  Va.  380,  27  S.  E.  278,  31  S.  E.  258.  '  WISCONSIN:  The  master  cannot  dele- 
gate primary  duties  so  as  to  escape  liability,  Brabbits  v.  Railway  Co.,  38 
Wis.  289;  and  a  suitable  place  for  doing  the  work  must  be  not  only  pro- 
vided, but  properly  maintained,  Bessex  v.  Railway  Co.,  45  Wis.  477;  and  must 
use  ordinary  care  in  selection  of  servants,  Heine  v.  Railway  Co.,  58  Wis. 


§    55)  CONCURRENT    AND    CONTRIBUTORY    NEGLIGENCE.  151 

injury.1  If  a  machine  is  defective  or  improper  for  the  intended  use, 
the  employer  is  liable  for  injury  to  an  employe"  caused  thereby,  al- 
though the  negligence  of  a  fellow  servant  may  have  contributed  to 
the  result.2  If  the  servant  is,  however,  responsible  for  the  selection 
of  an  improper  instrument,  other  and  suitable  ones  being  available, 
it  follows,  as  of  course,  that  he  cannot  recover,  as  no  fault  rests  on 
the  master.3 

531,  17  X.  W.  420.  The  Wisconsin  doctrine  closely  follows  the  New  York 
rule.  On  the  general  subject  see  Johnson  y.  Bank,  79  Wis.  414,  48  N.  W.  712; 
Dwyer  v.  Express  Co.,  82  Wis.  307,  52  X.  W.  304;  McClarney  v.  Railway 
Co.,  80  Wis.  277,  49  X.  W.  963;  Cadden  v.  Barge  Co.,  88  Wis.  409,  60  N.  W. 
800;  Eingartner  v.  Steel  Co.,  94  Wis.  70,  68  X.  W.  664;  Smith  v.  Railway 
Co.,  91  Wis.  5C3,  G5  X.  W.  183;  Prybilski  v.  Railway  Co.,  98  Wis.  413,  74 
X.  W.  117;  Jarnek  y.  Dock  Co.,  97  Wis.  537,  73  N.  W.  62;  McMahon  v.  Min- 
ing Co.,  101  Wis.  102,  76  X.  W.  1098.  WYOMIXG:  The  few  decisions  in  this 
state  seem  to  incline  strongly  to  the  rule  of  the  federal  court  MeBride  v. 
Railway  Co.,  3  Wyo.  247,  21  Pac.  687. 

§  55.  i  Franklin  y.  Railroad  Co.,  37  Minn.  409,  34  X.  W.  898;  Graver  v. 
Christian.  36  Minn.  413,  31  X.  W.  457;  Grand  Trunk  Ry.  Co.  v.  Cummings, 
106  U.  S.  700,  1  Sup.  Ct  493;  Stringham  v.  Stewart,  100  X.  Y.  516,  3  X.  E.  575; 
Elmer  y.  Locke,  135  Mass.  575;  Pullman  Palace-Car  Co.  v.  Laack,  143  111.  242,  32 
X.  E.  2S5;  Browning  y.  Railway  Co.,  124  Mo.  55,  27  S.  W.  644;  Denyer  &  R.  G. 
R.  Co.  v.  Sipes  (Colo.  Sup.)  55  Pac.  1093;  International  &  G.  N.  R.  Co.  v.  Bonatz 
(Tex.  Civ.  App.)  48  S.  W.  767;  Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v.  Hannig 
(Tex.  Civ.  App.)  49  S.  W.  116;  Wheatley  y.  Railroad  Co.,  1  Mary.  305,  30  Atl. 
000;  Lago  v.  Walsh,  98  Wis.  348,  74  X.  W.  212;  Jensen  y.  The  Joseph  B. 
Thomas,  81  Fed.  578;  Wright  v.  Southern  Pac.  Co.,  14  Utah,  383,  46  Pac.  374; 
Haudley  v.  Mining  Co.,  15  Utah,  176,  49  Pac.  295. 

2  Young  y.  Railway  Co.,  46  Fed.  160,  affirmed  in  1  C.  C.  A.  428,  49  Fed. 
723.     See,  also,  Rogers  v.  Leyden,   127  Ind.  50-53,  26  X.  E.  210;    Richmond 
&  D.  R.  Co.  v.  George,  88  Va.  223,  13  S.  E.  429;    Xorthwestern  Fuel  Co.  v. 
Danielson,  6  C.  C.  A.  636,  57  Fed.  915-919;    Browning  y.  Railway  Co.,   124 
Mo.  55,  27  S.  W.  644;    Steinke  v.  Match  Co.,  87  Wis.  477,  58  X.  W.  842;  Frank- 
lin v.  Railroad  Co.,  37  Minn.  409,  34  X.  W.  898;    Gardner  y.  Railroad  Co.,  150 
U.  S.  349,  14  Sup.  Ct.  140;    Leonard  y.  Kinnare,  174  111.  532,  51  X.  E.  688;    In- 
ternational &  G.  X.  R.  Co.  v.  Zapp  (Tex.  Ciy.  App.)  49  S.  W.  673;    Chicago 
&  X.  W.  Ry.  Co.  v.  Gillison,  173  111.  264,  50  X.  E.  657;    Lauter  v.  Duckworth, 
19  Ind.  App.  535,  48  X.  E.  864;    Stucke  y.  Railroad  Co.,  50  La.  Ann.  172,  23 
South.  342;    Troxler  y.  Railway  Co.,  122  X.  C.  902,  30  S.  E.  117. 

3  Thyng  y.  Railroad  Co.,  156  Mass.  13,  30  X.  E.  169;   Hefferen  v.  Railroad 
Co.,  45  Minn.  471,  48  X.  W.  1. 


152  LIABILITY    OF    MASTER   TO    SERVANT.  (Ch.   3 


SAME— SERVANT'S  OWN  NEGLIGENCE  AS  PROXIMATtt 

CAUSE. 

66.  In  any  event  the  servant  cannot  recover  from  the  mas- 
ter if  his  own  negligence  proximately  caused  the 
injury  complained  of. 

In  considering  the  reciprocal  duties  of  master  and  servant,  and  the 
involved  doctrine  of  fellow  servant,  it  must  not  be  overlooked  that  the 
law  of  contributory  negligence  is  in  no  degree  abated,  and  may  al- 
ways be  shown  as  a  complete  bar  to  recovery.  Thus,  the  fact  that  a 
stop  block  at  the  end  of  a  trestle  was  defective  will  not  render  the 
company  liable  for  the  death  of  an  engineer  who  ran  his  engine  off 
the  end  of  the  trestle,  when  the  accident  was  caused  by  running  the 
engine  at  such  a  rate  of  speed  that  no  block  would  have  been  effect- 
ive.1 

§  56.  i  Louisville  &  X.  R.  Co.  v.  Stutts,  105  Ala.  368,  17  South.  29;  Cen- 
tral Railroad  &  Banking  Co.  v.  Brantley,  93  Ga.  259,  20  S.  E.  98;  City  of 
Lebanon  v.  McCoy,  12  Ind.  App.  500,  40  N.  E.  700;  Nelling  v.  Railroad  Co., 
98  Iowa,  554,  63  N.  W.  568,  67  X.  W.  404;  Light  v.  Railway  Co.,  93  Iowa,  83, 
61  N.  W.  380;  Duval  v.  Hunt,  34  Fla.  85,  15  South.  876.  A  fireman  falling  asleep 
in  the  roundhouse  with  foot  on  track,  Price  v.  Railroad  Co.,  77  Mo.  508; 
conductor  failing  to  stop  his  train  in  time  to  prevent  collision,  Chicago  &  N1. 
W.  R.  Co.  v.  Snyder,  117  111.  376,  7  N.  E.  604;  Clark  v.  Railroad  Co.,  80  Hun, 
320,  30  N.  Y.  Supp.  126;  brakeman  uncoupling  cars  contrary  to  rules,  Lock- 
wood  v.  Railway  Co.,  55  Wis.  50,  12  X.  W.  401;  Robinson  v.  Manufacturing 
Co.,  143  Mass.  528,  10  N.  E.  314;  Crabell  v.  Coal  Co,,  68  Iowa,  751,  28  X.  W. 
66. 


§    57)  LIABILITY    OF    MASTER   TO    THIRD    PERSONS.  153 

CHAPTER  IV. 

LIABILITY  OF  MASTER  TO  THIRD  PERSONS. 

57.  Nature  of  Master's  Liability. 

58.  Relationship. 

59-60.  Independent  Contractor. 

61.  Reasonable  Care  in  Selection  of  Contractor. 

62.  Liability  When  the  Object  of  the  Contract  is  Unlawful. 

63.  Absolute  Personal  Duties. 

64.  Willful  Torts  of  Servants. 

65.  Torts  Outside  Scope  of  Employment. 

66.  Independent  Torts. 

NATURE  OF  MASTER'S  LIABILITY. 

57.  The  master  is  liable  for  the  negligence  of  his  servant 
occurring  -within  the  course  of  his  employment; 
but  not 

(a)  When  the  negligence  concerns  matters  foreign  to  the 

general  business;  nor 

(b)  When  the  business  is  transacted  by  an  independent 

contractor. 

The  liability  of  the  master  to  third  persons  for  the  negligent  or 
•wrongful  acts  of  those  in  his  employment  is  based  on  the  broad  prin- 
ciple of  the  general  security  of  society  and  business.  As  every  one 
is  responsible  for  the  results  of  his  own  negligence,  a  person  may  not 
•devest  himself  of  liability  by  deputizing  another  to  act  for  him,  and 
then  disclaiming  the  consequence  of  his  acts,  if  they  result  in  injury 
to  the  person,  property,  or  reputation  of  another.  In  the  early  case 
of  Quarman  v.  Burnett,1  Parke,  B.,  was  of  the  opinion  that  he  was 
properly  held  liable  "who  selected  him  as  his  servant,  from  the  knowl- 
edge of,  or  belief  in,  his  skill  and  care,  and  who  could  remove  him  for 
misconduct,  and  whose  orders  he  was  bound  to  receive  and  obey." 

§  57.  16  Mees.  &  W.  499.  See,  also,  Hern  v.  Nichols,  1  Salk.  289.  And  in 
Lane  v.  Cotton,  12  Mod.  473,  the  liability  of  the  master  for  injuries  inflicted 
by  his  servant  on  a  stranger  was  placed  on  the  ground  that  the  stranger  had 
had  no  hand  in  selecting  the  servant. 


154  LIABILITY    OF    MASTER    TO    THIRD    PERSONS.  (Ch.  4 

Thus,  where  a  servant  was  ordered  to  shovel  snow  from  a  roof,  his- 
master  was  held  liable  to  a  third  person  for  his  carelessness  in  per- 
forming the  work.2 

And  the  broad  principle  of  this  rule  of  law  cannot  be  narrowed  or 
thwarted  by  permitting  the  master  to  plead  that  the  servant  was  act- 
ing contrary  to  specific  instructions  or  outside  the  definite  bounds  of 
his  authority.  To  permit  this  defense  would  be  to  abrogate  the  doc- 
trine of  respondeat  superior.  And  so,  where  the  defendants  sent  their 
servant  to  make  a  test  of  a  boiler  under  a  pressure  not  to  exceed  150 
pounds,  and  he,  acting  partly  on  the  request  of  the  purchaser  and 
partly  on  his  own  judgment,  raised  the  pressure  to  198  pounds,  and 
then  held  down  the  lever  of  the  safety  valve  so  that  the  boiler  ex- 
ploded and  injured  a  passer-by,  it  was  held  that,  although  the  servant's- 
action  was  foolhardy  and  contrary  to  express  instructions,  it  was- 
nevertheless  committed  within  the  scope  of  defendants'  business,  and 
they  were  liable.3  Although  a  strict  enforcement  of  the  rule  fre- 
quently appears  to  work  a  hardship  on  one  who  has  used  every  pre- 
caution in  the  choice  of  his  servants,  it  is,  nevertheless,  so  generally 
ingrafted  in  the  conduct  of  all  lines  of  business  and  society  that  the 
importance  of  its  maintenance  can  hardly  be  overestimated.4 

2  Althorf  v.  "Wolfe,  22  N.  Y.  355;    where  a  driver  in  defendant's  employ- 
ment carelessly  ran  over  plaintiff,  a  pedestrian,  Groth  v.  Washburn,  89  N.  Y. 
615;   where  an  apprentice  borrowed  his  employer's  team  to  take  a  ride,  and 
carelessly  injured  plaintiff,  Sherwood  v.  Fischer,  3  Hun  (N.  Y.)  606. 

3  Ochsenbein  v.  Shapley,  85  N.  Y.  214;   and  where  wheat  was  consigned  to- 
Albany,  and  the  master  of  the  boat,  on  reaching  that  point,  was  directed  by 
consignees  to  proceed  to  a  point  further  on,  before  reaching  which  the  cargo- 
was  injured,  Gibbs  v.  Van  Buren,  48  N.  Y.  661;   Quinn  v.  Power,  87  N.  Y.  535. 
The  doctrine  of  "particular  command,"  as  a  test  of  the  master's  liability,  was 
in  force  in  the  time  of  Edward  I.,  and  is  thus  stated  by  Bacon:    "In  commit- 
ting of  lawful  authority  to  another,  a  party  may  limit  it  as  strictly  as   it 
pleaseth  him;   and  if  the  party  authorized  do  transgress  his  authority,  though 
it  be  but  in  circumstance  expressed,  yet  it  shall  be  void  in  the  whole  act." 
Bac.  Max.  16.     See,  also,  Jag.  Torts,  p.  249. 

*  The  historic  origin  of  the  rule  is  uncertain,  but  is  ascribed  by  Chancellor 
Kent  to  the  Roman  law.  "The  true  explanation  of  the  doctrine  seems  to  be 
historical,  dating  back  to  the  period  of  the  Roman  law,  when  servants  were 
slaves,  for  whom  paterfamilias  was  responsible  as  part  of  his  general  responsi- 
bility for  the  family  which  he  represented  and  governed."  2  Kent,  Comnu 
U-th  Ed.)  260,  note  1. 


§    58)  RELATIONSHIP.  155 


RELATIONSHIP. 

58.  To  establish  the  master's  liability,  it  is  essential 

(a)  That  the  relation  of  principal  and  agent  exist  at  the 

time  of  the  •wrongful  act. 

(b)  That  the  -wrongful  act   be   committed   fairly   within 

the  scope  of  the  general  business  for  -which  the  serv- 
ant is  engaged. 

The  relationship  may  be  the  result  of  definite  agreement  or  may  be 
inferable  from  the  circumstances  of  a  given  case,  but  its  establish- 
ment by  some  means  is  a  sine  qua  non  to  the  application  of  the  doc- 
trine of  respondeat  superior.1  And,  when  the  privity  is  destroyed,  it 
follows,  as  a  corollary,  that  the  responsibility  of  the  master  termi- 
nates.2 And  if  one  knowingly  and  customarily  avails  himself  of  the 
services  of  another,  although  he  has  not  employed  him  and  does  not 
pay  him,  he  will  be  liable  as  an  employer  for  his  negligence  in  the 
business  in  which  he  serves  him.  Thus,  where  the  defendant  rail- 
road used  the  roundhouse  of  another  company,  and  a  servant  of  the 
latter  was  accustomed  to  bring  defendant's  engines  out  when  re- 
quired, while  so  engaged  he  was  held  to  be  in  the  service  of  the  de- 
fendant, which  wras  liable  for  his  negligence  while  so  employed.3 

The  cases  are  somewhat  conflicting  and  unsatisfactory  in  defining 
the  employer's  liability  when  the  injury  is  caused  by  the  negligence 
of  one  employed  by  a  servant  without  the  authority,  sanction,  or 
knowledge  of  the  master.  In  at  least  some  of  the  cases  ordinarily 
cited  to  affirm  the  master's  liability  in  such  circumstances,  examina- 
tion discloses  that  a  quasi  custom  or  quasi  knowledge  was  established 

§  58.  i  Thorpe  v.  Railroad  Co.,  7G  X.  Y.  402;  Dwinelle  v.  Same,  120  N.  Y. 
117,  24  N.  E.  319;  Pennsylvania  Co.  v.  Roy,  102  U.  S.  451;  Wood  v.  Cobb,  13 
Allen  (Mass.)  58;  Kimball  v.  Cushman,  103  Mass.  194;  Ward  v.  Fibre  Co.,  154 
Mass.  419,  28  N.  E.  299;  Welsh  v.  Parrish,  148  Pa.  St.  599,  24  Atl.  86;  Cor- 
coran v.  Railroad  Co.,  6  C.  C.  A.  231,  56  Fed.  1014. 

2  A  discharged  employ*}  maliciously  misplaced  a  switch.  East  Tennessee, 
V.  &  G.  R.  Co.  v.  Kane,  92  Ga.  187,  18  S.  E.  18;  Illinois  Cent.  R.  Co.  v. 
Andrews,  78  111.  App.  80;  Healey  v.  Lothrop,  171  Mass.  263,  50  N.  E.  540. 

s  Missouri,  K.  &  T.  Ry.  Co.  v.  McGlamory  (Tex.  Civ.  App.)  34  S.  W.  359; 
Denver  &  R.  G.  R.  Co.  v.  Gustafson.  21  Colo.  393,  41  Pac.  505;  Wellman  y. 
Miner,  19  Misc.  Rep.  644,  44  X.  Y.  Supp.  417. 


156  LIABILITY    OF    MASTER   TO   THIRD    PERSONS.  (Ch.   4 

by  the  evidence,4  while  in  a  few  instances  the  liability  is  unqualifiedly 
asserted  5  or  denied.6  If  the  injury  is  caused  by  the  impertinent  inter- 
ference of  a  stranger,  without  the  request  or  consent  of  the  servant, 
it  is  evident  that  the  master  cannot  be  held  responsible.7 

While  in  many  cases  the  existence  of  the  relationship  is  undisputed, 
it  frequently  happens  that  some  difficulty  is  experienced  in  determin- 
ing the  proper  person  to  be  charged  with  liability  as  master.  In 
such  cases,  reference  must  be  had  to  the  contract  of  service  as  well  as 
to  the  particular  circumstances.  When  a  contractor  let  his  servant 
and  team  to  the  city  by  the  day,  although  it  appeared  that  he  was 
under  the  exclusive  control  of  the  city,  his  master  was  nevertheless 
held  liable  for  damages  caused  by  the  horse  kicking  a  loose  shoe 
through  an  adjacent  window  while  his  driver  was  beating  him.8  In 
determining  who  is  the  master,  the  question  of  choice  or  selection  of 
the  servant  is  important,  although  not  decisive.9  The  master,  in 
hiring  out  his  servant,  may  so  completely  part  with  his  authority  and 
•control  over  him  as  to  be  released  from  the  responsibility,  which  is 
thereby  shifted  to  his  immediate  employer.10  The  matter  of  selec- 

*  Gleason  v.  Amsdell,  9  Daly  (N.  Y.)  393;  Simons  v.  Monier,  29  Barb.  (N.  Y.) 
419. 

5  Suydam  v.  Moore,  8  Barb.  (N.  Y.)  358;  Althorf  v.  Wolfe,  22  N.  Y.  355; 
Ryan  v.  Boiler  Works,  68  Mo.  App.  148;  Sinaltz  v.  Boyce,  109  Mich.  382, 
•69  N.  W.  21;  Booth  v.  Mister,  7  Car.  &  P.  66. 

e  Jewell  v.  Railway  Co.,  55  N.  H.  84. 

t  Edwards  v.  Jones,  67  How.  Prac.  177. 

s  Huff  v.  Ford,  126  Mass.  24;  Quinn  v.  Construction  Co.,  46  Fed.  506.  See, 
also,  Wyllie  v.  Palmer,  137  N.  Y.  248,  33  N.  E.  381;  Colvin  v.  Peabody,  155 
Mass.  104,  29  N.  E.  59.  And,  in  a  contract  to  manufacture  and  ship  goods, 
the  designation  of  a  certain  person  to  care  for  the  goods  does  not  make  him 
an  agent  of  both  parties,  so  as  to  relieve  the  shipper  from  liability  for  his 
negligence  or  incompetency.  Paige  v.  Roeding,  96  Cal.  388,  31  Pac.  264. 

»  A  person  employed  by  master's  servant  without  his  knowledge  or  author- 
ity is  not  his  servant,  Mangan  v.  Foley,  33  Mo.  App.  250;  and  the  person  so 
employed  assumes  the  risks  of  his  employment,  Blair  v.  Railroad  Co.,  60  Mich. 
124,  26  N.  W.  855;  Jewell  v.  Railway  Co.,  55  X.  H.  84;  Gahagan  v.  Aermoter 
Co.,  67  Minn.  252,  69  N.  W.  914;  Hess  v.  Mining  Co.,  178  Pa.  St.  239,  35  Atl. 
990. 

10  Brown  v.  Smith,  86  Ga.  274,  12  S.  E.  411;  Burke  v.  De  Castro,  11  Hun 
<N.  Y.)  354;  Sweeny  v.  Murphy,  32  La.  Ann.  628;  McCauley  v.  Casualty  Co., 
16  Misc.  Rep.  574,  38  N.  Y.  Supp.  773;  Buckingham  v.  Vincent,  23  App.  Div. 
238,  48  N.  Y.  Supp.  747. 


§    58)  RELATIONSHIP. 

tion  is  but  one  element  to  be  considered  in  the  determination  of  the 
question.  It  is  necessary  to  go  further,  and  ascertain  who  was  in 
the  exercise  of  full  control  and  supervision  of  his  movements  at  the 
time  of  the  misconduct,  and  especially  whose  interest  and  will  he 
represented  and  in  whose  place  he  stood.11 

This  brings  us  to  the  consideration  of  the  relation  which  exists  in 
a  well-defined  class  of  cases  where  the  owner  hires  or  leases  some 
specific  piece  of  property,  as  a  team,  a  boat,  or  an  engine,  and  fur- 
nishes servants  to  operate  or  care  for  it.  In  such  cases,  the  lessee 
acquires  a  limited  authority  or  control  over  such  servants,  but  it  i& 
directed  only  to  results,  not  to  the  means  or  the  manner  of  the  accom- 
plishment, and  they  are,  almost  uniformly,  held  to  remain  the  serv- 
ants of  the  lessor,  who  is  responsible  for  their  negligence.  Thus,  a 
stevedore,  undertaking  to  unload  a  ship  at  defendants'  dock,  leased 
from  defendants,  for  the  purpose  of  handling  the  cargo,  a  portable 
engine,  with  engineer  and  power  to  operate  it.  Through  the  care- 
lessness of  the  engineer  in  lowering  a  "sling"  of  boxes,  plaintiff  was 
injured,  and  defendants  were  held  liable  as  masters.12 

It  is  very  evident  that,  for  all  torts  committed  at  his  express  direc- 
tion, or  which  he  has  subsequently  assented  to,  the  master  is  liable; 
as  if  the  master  directs  his  servant  to  perpetrate  a  fraud,  maintain 
a  nuisance,  commit  a  trespass,  or  convert  to  his  own  use  the  property 
of  another.13  When  these  torts  are  the  direct  result  of  deliberate 

11  Corbin  v.  American  Mills,  27  Conn.  274;    Wyllie  v.  Palmer,  137  N.  Y. 
248,  33  X.  E.  381;    Paige  v.  Roeding,  96  Cal.  388,  31  Pac.  264;    Quinn  v.  Con- 
struction Co.,  46  Fed.  506;    Higgins  v.  Telegraph  Co.,  8  Misc.   Rep.  433,  28 
N.  Y.  Supp.  676.     In  fixing  the  responsibility  for  the  negligence  where  the 
injury  occurred  in  the  management  or  use  of  some  specific  piece  of  property, 
as  a  vehicle  or  machine,  it  is  sufficient,  prima  facie,  to  prove  the  ownership, 
the  presumption   arising  that  the  owner  exercised   control  of   his   property. 
Xorris  v.  Kohler,  41  N.  Y.  42;    McCoun  v.  Railroad  Co.,  66  Barb.  (N.  Y.)  338; 
Joyce  v.  Capel,  8  Car.  &  P.  370. 

12  Coyle  v.  Pierrepont,  37  Hun  (N.  Y.)  379,  overruling  33  Hun  (N.  Y.)  311; 
Currier  v.  Henderson,  85  Hun,  300,  32  N.  Y.  Supp.  953;    Byrne  v.  Railroad: 
Co.,  9  C.  C.  A.  666,  61  Fed.  605;   Crockett  v.  Calvert,  8  Ind.  127;   Ames  v.  Jor- 
dan, 71  Me.  540;    Union  Steamship  Co.  v.  Claridge,  6  Reports,  434;    Id.  [1894], 
App.  Cas.  185;   Dalyell  v.  Tyrer,  El.,  Bl.  &  El.  899.     But  see,  per  contra,  Burke 
v.  De  Castro,  11  Hun  (X.  Y.)  354;    Thiry  v.  Malting  Co.,  37  App.  Div.  391,  56 
X.  Y.  Supp.  85;    Samullian  v.  Machine  Co.,  168  Mass.  12,  46  X.  E.  98. 

is  Southerne  v.  Howe,  2  Rolle,  5-26;    State  v.  Smith,  78  Me.  260,  4  Atl.  412;. 


158  LIABILITY    OF    MASTER    TO    THIRD    PERSONS.  (Ch.   4 

intention  on  the  master's  part,  he  is  chargeable  with  responsibility  in 
a  like  degree  as  if  he  had  performed  the  acts  in  person.  The  doc- 
trine of  identification  of  master  and  servant  is  exemplified.  And  the 
ratification  by  the  master  of  his  servant's  torts  rests  on  the  same  prin- 
ciple.14 

A  servant  is  hired  to  assist  in  the  prosecution  and  furtherance  of 
his  master's  business,  and,  to  make  the  master  liable  for  his  negligent 
act,  it  must  be  committed  in  the  line  of  the  general  employment.15 
If  the  act  is  foreign  to  the  purpose  for  which  he  was  hired,  or  occurs 
in  the  transaction  of  a  matter  not  reasonably  incident  to  the  business, 
the  employer  is  not  responsible.16  Thus,  where  a  boy  was  invited  by 
defendant's  teamster  to  ride  on  the  dump  cart  which  he  was  driving, 
and  by  request  took  the  reins,  the  driver  going  to  sleep,  and  fell  off 
and  was  injured,  it  was  held  that  defendant  was  not  liable,  as  the 
invitation  of  the  teamster  was  outside  the  scope  of  his  employment.17 

Ketcham  v.  Newman  (1894)  141  N.  Y.  205,  36  N.  E.  197;  Carman  v.  Railroad 
•Co.,  4  Ohio  St.  399;  Hobdy  v.  Margotto,  4  Lack.  Leg.  News,  17;  Little  Rock 
Traction  &  Electric  Co.  v.  Walker  (Ark.)  45  S.  W.  57;  Robinson  v.  Railway 
Co.,  94  Wis.  345,  68  N.  W.  961. 

i*  International  &  G.  N.  Ry.  Co.  v.  Miller,  9  Tex.  Civ.  App.  104,  28  S.  W. 
233;  Fletcher  v.  Railroad  Co.,  168  U.  S.  135,  18  Sup.  Ct.  35;  East  St.  Louis 
Connecting  Ry.  Co.  v.  Reames,  173  111.  582,  51  N.  E.  68;  Eagle  Const.  Co.  v. 
Wabash  R.  Co.,  71  Mo.  App.  626;  Stranahan  Bros.  Catering  Co.  v.  Coit, 
55  Ohio  St.  398.  45  N.  E.  634. 

IB  Lovingston  v.  Bauchens,  34  111.  App.  544;  Osborne  v.  McMasters,  40 
Minn.  103,  41  N.  W.  543;  Tuel  v.  Weston,  47  Vt.  634;  Singer  Mfg.  Co.  v. 
Rahn,  132  U.  S.  518,  10  Sup.  Ct.  175;  Camp  v.  Hall,  39  Fla.  535,  22  South. 
792;  Clack  v.  Supply  Co.,  72  Mo.  App.  506;  Todd  v.  Havlin,  Id.  565;  Knowles  v. 
Bullene,  71  Mo.  App.  341;  McDonald  v.  Franchere,  102  Iowa,  496,  71  N.  W. 
427;  Holmes  v.  Railroad  Co.,  49  La.  Ann.  1465,  22  South.  403;  Gray  v.  Rail- 
road Co.,  168  Mass.  20,  46  N.  E.  397. 

is  Brown  v.  Engineering  Co.,  166  Mass.  75,  43  N.  E.  1118;  Hartman  v. 
Muelbach,  2  Mo.  App.  Rep'r,  956;  Illinois  Cent.  R.  Co.  v.  Andrews,  78  111. 
App.  80;  Penny  v.  Railroad  Co.,  34  App.  Div.  10,  53  N.  Y.  Supp.  1043;  Rob- 
inson v.  McNeill,  18  Wash.  163,  51  Pac.  355;  Barabasz  v.  Kabat,  86  Md.  23, 
37  Atl.  720;  International  &  G.  N.  R.  Co.  v.  Yarbrough  (Tex.  Civ.  App.)  39 
S.  W.  1096;  Winkler  v.  Fisher,  95  Wis.  355,  70  N.  W.  477;  Rudgeair  v.  Trac- 
tion Co.,  180  Pa.  St.  333,  36  Atl.  859. 

IT  Driscoll  v.  Scanlon,  165  Mass.  348,  43  N.  E.  100.  Also,  where  an  en- 
gineer, intending  a  joke,  squirted  hot  instead  of  cold  water  on  plaintiff,  whom 
he  had  invited  to  ride  in  the  engine.  International  &  G.  N.  R.  Co.  v.  Cooper, 
88  Tex.  607,  32  S.  W.  517. 


§    58)  RELATIONSHIP.  159 

But  mere  deviation  from  instructions,18  or  mistake  in  judgment,19  or 
slight  excess  of  authority,20  is  not  sufficient  to  relieve  the  master 
from  responsibility. 

Keceivers  of  railroads  and  other  corporations  are  responsible,  to 
the  extent  of  the  trust  funds  or  assets,  for  the  negligence  of  those  em- 
ployed by  them  to  carry  on  the  business; 21  and  trustees  and  others 
occupying  fiduciary  positions  are  likewise  accountable  for  the  conduct 
of  their  assistants  and  employe's.  But  in  certain  cases,  where  the 
hiring  of  the  servant  is  compulsory,  the  employe"  does  not  become  an 
agent  so  as  to  render  the  employer  accountable  for  his  negligence  or 
misconduct,  unless  the  employer  is  permitted  to  some  extent  to  exer- 
cise a  choice  in  the  matter  of  his  selection.  Such  an  instance  is 
found  in  the  compulsory  acceptance  of  the  first  pilot  to  board  an  in- 
coming vessel  within  certain  distance  limitations.22  In  like  manner, 
a  receiver  appointed  in  involuntary  proceedings  is  not  a  servant  of 
the  corporation  so  as  to  render  it  responsible  for  his  own  negligence 
or  that  of  the  servants  whom  he  employs  to  assist  him  in  the  manage- 
ment of  the  business.23 

Negligence  Leading  to  Willful  Injury. 

It  not  infrequently  happens  that  a  servant,  by  mere  carelessness, 
places  himself  in  a  position  where  he  cannot  escape  or  protect  his 
master's  property  without  committing  deliberate  injury  to  the  person 
or  property  of  another.  In  these  circumstances,  although  he  has  no 
authority  to  commit  a  willful  tort,  a  proper  regard  for  the  interest  of 
his  master  raises  an  implied  authority  to  commit  the  wrongful  act; 

is  Postal  Telegraph  Cable  Co.  v.  Brantley,  107  Ala.  683,  18  South.  321;  Pow- 
ell v.  Deveney,  3  Gush.  (Mass.)  300;  Com.  v.  New  York,  N.  H.  &  H.  R,  Co.,  112 
Mass.  412. 

19  Eichengreen  v.  Railroad  Co.,  96  Term.  229,  34  S.  W.  219. 

20  Brevig  v.  Railway  Co.,  64  Minn.  168,  66  N.  W.  401.     Or  when  the  au- 
thority is  subsequently  ratified.    Denipsey  v.  Chambers,  154  Mass.  330,  28  X. 
E.  279. 

*i  Murphy  v.  Holbrook,  20  Ohio  St.  137;  Dalton  v.  Receivers,  4  Hughes, 
180,  Fed.  Cas.  No.  3,550. 

22  General  Steam  Nav.  Co.  v.  British  &  C.  S.  Xav.  Co.,  L.  R.  3  Exch.  330. 
But  see  Fletcher  v.  Braddick,  2  Bos.  &  P.  (N.  R.)  182.     But  otherwise  when 
the  master  can  exercise  an  option.     Martin  v.  Temperley,  4  Q.  B.  298;    Yates 
v.  Brown,  8  Pick.  (Mass.)  23. 

23  Metz  v.  Railroad  Co.,  58  N.  Y.  61. 


160  LIABILITY    OF    MASTER    TO    THIRD    PERSJX3.  (Ch.   4 

as  if  the  servant  drive  his  master's  team  so  carelessly  that  he  arrives, 
at  a  position  from  which  he  can  extricate  himself  and  team  in  nc* 
other  way  than  by  deliberately  driving  into  plaintiff's  horse  and 


wagon.2* 


INDEPENDENT  CONTRACTOR. 


59.  An  independent  contractor  is  one  who,  exercising 

own  volition  and  judgment  as  to  means  and  meth- 
ods, undertakes  to  achieve  a  definite  result. 

60.  The  employer  is  not  responsible  for  the  negligence  of 

the  independent   contractor  or  his  subagents  while 
the  work  is  in  progress,  unless 

(a)  He  is  negligent  in  the  selection  of  the  contractor;  or 

unless 

(b)  The  object  of  the  contract  is  unlawful;  or  unless 

(c)  He    has   omitted    to  perform   an    absolute,  personal 

duty. 

As  a  general  proposition,  it  may  be  said  that  the  liability  of  the 
master  for  torts  committed  by  his  servants  is  based  on  the  theory 
of  selection  and  control,  either  actual  or  implied;  that  he  may 
choose  who  shall  do  his  work,  direct  how  it  shall  be  accomplished, 
and  retain  or  discharge  the  workmen,  at  his  option;  and,  as  has  al- 
ready been  stated,  if  these  essential  principles  of  agency  are  lackingr 
the  doctrine  of  respondeat  superior  does  not  apply.  If  I  send  my 
horse  to  the  smith  to  be  shod,  although  he  and  his  helpers  do  my 
work,  it  is  evident  that  they  are  not  my  "servants,"  within  the  ac- 
cepted legal  sense  of  the  word,  and  that  I  am  not  responsible  for  any 
injury  that  may  come  to  others  through  their  negligent  manner  of 
doing  my  work;  and,  if  I  engage  a  carpenter  to  make  and  deliver  to- 
me a  box  of  certain  dimensions,  it  is  still  quite  clear  that  I  cannot  be 
compelled  to  respond  in  damages  for  his  carelessness  in  executing  my 
order.  In  each  of  these  cases  the  contract  is  for  a  specific  thing. 
If  the  horse  is  returned  properly  shod,  or  the  box  finished  according 
to  specifications,  it  is  immaterial  where,  how,  or  by  whom  the  actual 
work  is  done.  Those  are  intermediate  considerations,  over  which  the 

24  Wolfe  v.  Mersereau,  4  Duer  (N.  Y.)  473;  Price  v.  Simon  (X.  J.  Sup.)  4O 
Atl.  G89. 


§§    59-60)  INDEPENDENT   CONTRACTOR.  161 

employer  exercises  neither  volition  nor  control.  In  such  conditions 
the  person  so  undertaking  to  achieve  a  certain  result,  free  from  dicta- 
tion or  interference,  is  called,  for  purposes  of  convenience,  an  inde- 
pendent contractor.1 

If  the  work  has  been  completed  and  accepted  by  the  employer,  his 
immunity  from  responsibility  for  any  dangerous  elements  that  it 
may  contain  ceases,  and  his  liability  is  determined  by  the  rules  of  law 
ordinarily  applicable  to  the  breach  of  the  duties  of  ownership  and  con- 
trol.2 Likewise,  if  the  contractor  abandons  the  work.3  And  if  the 
employer  interferes  with  the  performance  of  the  work,  or  assumes  to 
assist  therein,  he  may  thereby  incur  liability.4  If  the  employer  re- 

§§  59--60.  i  Spoue  v.  Hemmingway,  14  Pick.  (Mass.)  1;  Singer  Mfg.  Co. 
v.  Rahn,  132  U.  S.  518,  10  Sup.  Ct.  175;  Waters  v.  Fuel  Co.,  52  Minn.  474, 
55  X.  W.  52;  Powell  v.  Construction  Co.,  88  Tenn.  692,  13  S.  W.  691;  Law- 
rence v.  Shiprnan,  39  Conn.  586;  Crenshaw  v.  Ulhnan,  113  Mo.  633,  20  S. 
W.  1077;  Cuff  v.  Railroad  Co.,  35  N.  J.  Law,  17;  Long  v.  Moon,  107  Mo.  334r 
17  S.  W.  810;  Brannock  v.  Elmore,  114  Mo.  55,  21  S.  W.  451;  Scarborough 
v.  Railway  Co.,  94  Ala.  497,  10  South.  316;  Hawver  v.  Whalen,  49  Ohio  St. 
69,  29  N.  E.  1049;  Charlebois  v.  Railroad  Co.,  91  Mich.  59,  51  N.  W.  812; 
City  &  S.  Ry.  Co.  v.  Moores,  80  Md.  348,  30  Atl.  643;  Harris  v.  McNamara, 
97  Ala.  181,  12  South.  103;  Savannah  &  W.  R.  Co.  v.  Phillips,  90  Ga.  829,  17 
S.  E.  82;  Welsh  v.  Parrish,  148  Pa.  St.  599,  24  Atl.  86;  Haley  v.  Lumber 
Co.,  81  Wis.  412,  51  N.  W.  321,  956;  New  Albany  Forge  &  Rolling  Mill  v. 
Cooper,  131  Ind.  363,  30  N.  E.  294;  Piette  v.  Brewing  Co.,  91  Mich.  605,  52 
N.  W.  152.  As  to  relation  of  tenant,  as  independent  contractor,  to  his  land- 
lord, see  Curtis  v.  Kiley,  153  Mass.  123,  26  N.  E.  421;  City  of  Independence 
v.  Slack,  134  Mo.  66,  34  S.  W.  1094;  Frassi  v.  McDonald,  122  Cal.  400,  55 
Pac.  139,  772;  McXamee  v.  Hunt,  30  C.  C.  A.  653,  87  Fed.  298;  Jefferson  v, 
Jameson  &  Morse  Co.,  165  111.  138,  46  N.  E.  272;  Leavitt  v.  Railroad  Co.,  8d 
Me.  509,  36  Atl.  998;  Drennan  v.  Smith,  115  Ala.  396,  22  South.  442;  Roswell 
v.  Prior,  12  Mod.  635;  Cheetham  v.  Hampson,  4  Term  R.  318;  Leslie  v. 
Pounds,  4  Taunt.  649.  A  question  for  the  court.  Emmerson  v.  Fay,  94  Va. 
60,  26  S.  E.  386. 

2  Donovan  v.  Transit  Co.,  102  Cal.  245,  36  Pac.  517;  Read  v.  Fire  District 
(R.  I.)  40  Atl.  760. 

a  Savannah  &  W.  R.  Co.  v.  Phillips,  90  Ga.  829,  17  S.  E.  82. 

*  Burgess  v.  Gray,  1  Man.,  G.  &  S.  578;  Fisher  v.  Rankin,  78  Hun,  407, 
29  N.  Y.  Supp.  143;  Norwalk  Gaslight  Co.  v.  Borough  of  Norwalk,  63  Conn. 
495,  28  Atl.  32;  Woodman  v.  Railroad  Co.,  149  Mass.  335,  21  N.  E.  482;  King 
v.  Railroad  Oo.,  66  N.  Y.  181;  Eaton  v.  Railway  Co.,  59  Me.  520,  532,  534; 
Clark  v.  Fry,  8  Ohio  St.  358;  Robinson  v.  Webb,  11  Bush  (Ky.)  464;  Hushes 
v.  Railway  Co.,  39  Ohio  St.  461;  Chicago  Economic  Fuel  Gas  Co.  v.  Myers, 
BAR.NEG— 11 


162  LIABILITY    OF    MASTER    TO    THIRD    PERSONS.  (Ch.  4 

serves  the  right  of  dismissing  the  contractor,  such  reservation  is 
merely  an  element  to  be  considered  in  determining  whether,  viewing 
the  contract  as  a  whole,  the  relation  of  independent  contractor  ex- 
isted.5 

SAME— REASONABLE  CARE  IN  SELECTION  OP 
CONTRACTOR. 

61.  The  master  may  be  responsible  for  the  negligent  con- 
duct of  an  independent  contractor,  if  he  has  failed 
to  use  reasonable  care  in  selecting  him. 

It  is  quite  evident  that  the  employer  may  be  guilty  of  negligence  in 
intrusting  the  work  to  an  unskilled  or  incompetent  person,  and  in 
such  event  he  is  liable  for  resulting  injury.1  Difficulty  arises,  how- 
ever, in  determining  what  degree  of  care  in  the  selection  is  sufficient 
to  exonerate  the  employer  from  the  charge  of  negligence,  and  the 
cases  afford  no  satisfactory  rule.  It  would  seem  that  each  case  must 
be  decided  upon  its  own  circumstances,  the  character  of  the  work, 
and  the  corresponding  degree  of  skill  required  in  its  accomplishment, 
the  probable  attendant  dangers,  and  the  general  reputation  of  the 
contractor  for  skill  and  efficiency.2 

168  111.  139,  48  N.  E.  66.  But  see  Weber  v.  Railway  Co.,  20  App.  Div.  292,  47 
N.  Y.  Supp.  7;  Burke  v.  Ireland,  26  App.  Div.  487.  50  N.  Y.  Supp.  369;  Bohrer 
v.  Harness  Co.,  19  Ind.  App.  489,  45  N.  E.  668. 

B  Morgan  v.  Bowman,  22  Mo.  538;  City  of  Chicago  v.  Joney,  60  111.  383; 
New  Albany  Forge  &  Rolling  Mill  v.  Cooper,  131  Ind.  363,  30  N.  E.  294;  Bayer 
v.  Railroad  Co.,  68  111.  App.  219. 

§  61.  iBerg  v.  Parsons,  84  Hun,  60,  31  N.  Y.  Supp.  1091;  Xorwalk  Gas- 
light Co.  r.  Borough  of  Xorwalk,  63  Conn.  495,  28  Atl.  32.  See,  also,  Ardesco 
Oil  Co.  v.  Gilson,  63  Pa.  St.  146;  Sturges  v.  Society,  130  Mass.  414;  Bran- 
nock  v.  Elmore,  114  Mo.  55,  21  S.  W.  451;  Cuff  v.  Railroad  Co.,  35  N.  J.  La\v, 
17;  Conners  v.  Hennessey,  112  Mass.  96. 

2  See  "Negligence  of  Master  in  Selecting  Competent  Co-employes,"  ante,  p.  97. 
In  an  action  to  recover  damages  for  defendant's  want  of  care  in  employing  an 
incompetent  contractor  to  blast  stone  near  plaintiff's  house,  the  evidence  does 
not  show  that  defendant  made  sufficient  inquiries  as  to  the  contractor's  com- 
petency, where  it  appears  that  he  inquired  only  of  a  lawyer's  clerk,  and  that 
he  claimed  to  have  seen  some  work  that  the  contractor  had  done  reasonably 
well,  it  not  appearing  that  defendant  was  informed  that  the  contractor  had 
ever  done  any  work  of  the  kind  for  which  defendant  had  employed  him. 
Berg  v.  Parsons,  84  Hun,  GO,  31  N.  Y.  Supp.  1091. 


§    63)  ABSOLUTE    PERSONAL    DUTIES.  163 

SAME— LIABILITY  WHEN  THE  OBJECT  OF  THE  CONTRACT 

IS  UNLAWFUL. 

•62.  When  the  thing  contracted  to  be  done  is  tortious  or 
unlawful,  merely  doing  it  by  another  person,  under 
any  form  of  contract,  •will  not  relieve  the  employer 
from  responsibility.1 

Thus,  when  a  company,  without  the  necessary  municipal  authority, 
•employed  a  contractor  to  open  trenches  in  the  streets  of  a  city,  and  a 
person  was  injured  by  falling  over  a  heap  of  stones  left  by  the  con- 
tractor, the  company  was  liable  for  the  contractor's  unlawful  act.2 
Or,  if  the  contract  in  its  purview  contemplates  an  act  necessarily 
injurious  to  the  rights  or  property  of  another,  the  contractee  is  liable 
ior  resulting  damage;  as  where  a  canal  company  contracted  for  the 
repair  of  its  canal  with  soil  to  be  taken  from  certain  land  belonging  to 
.another,  the  removal  of  which  was,  of  necessity,  injurious  to  the  stran- 
.ger's  property.3 

SAME— ABSOLUTE  PERSONAL  DUTIES. 

63.  The  employer  cannot  avoid  responsibility  for  the  neg- 
ligent conduct  of  his  contractor 

(a)  Where   a  positive   duty  is  imposed  by  contract  or 

general  law. 

(b)  Where  an  obligation  is  imposed  by  statute. 

(c)  Where  the  work  to  be  done  is  intrinsically  danger- 

ous. 

§  62.  i  Ellis  v.  Gas  Consumers'  Co.,  23  Law  J.  Q.  B.  42;  Blessington  v. 
•City  of  Boston,  153  Mass.  409,  26  N.  E.  1133;  Sturges  v.  Society,  130  Mass. 
414;  Curtis  v.  Kiley,  153  Mass.  123,  26  X.  E.  421;  Woodman  v.  Railroad  Co., 
149  Mass.  335,  21  X.  E.  482;  Babbage  v.  Powers,  130  X.  Y.  281,  29  X.  E.  132. 
When  the  main  act  is  lawful,  and  the  contractor  incidentally  commits  an  un- 
lawful act,  the  employer  is  not  liable.  Wilson  v.  White,  71  Ga.  506. 

2  Ellis  v.  Gas  Consumers'  Co.,  23  Law  J.  Q.  B.  42,  2  El.  &  Bl.  767. 

3  \Villiams  v.  Irrigation  Co.,  96  Cal.  14,  30  Pac.  961;    Crenshaw  v.  Ulltnan, 
113  Mo.  633,  20  S.  W.  1077. 


164  LIABILITY    OF    MASTER    TO    THIRD    PERSONS.  (Ch.   4 

Positive  General  Duty. 

While,  in  the  large  majority  of  cases,  there  is  no  reason,  founded 
on  public  policy  or  on  the  relations  of  the  parties,  why  the  employer 
should  be  liable  to  third  parties  for  the  negligence  of  the  contractor, 
there  are  nevertheless  certain  duties  of  so  grave  a  nature  that  the 
responsibility  for  their  performance  cannot  be  avoided  by  delegation. 

Where  a  person  is  bound  to  perform  an  act  as  a  duty,  or  is  held  to- 
a  certain  standard  of  conduct,  he  cannot  escape  responsibility  by  in- 
trusting its  performance  to  another;  and  if  the  person  so  intrusted 
fails  to  perform  such  act,  or  conform  to  such  standard  of  conduct, 
whether  he  bore  the  relation  of  contractor  or  servant,  the  person  on 
whom  the  duty  rests  is  liable  for  his  negligence,  and  it  is  immaterial 
whether  the  obligation  is  imposed  by  contract  or  general  law.1  Thus, 
the  duty  rests  on  a  municipal  corporation  to  keep  its  streets  in  a  safe 
and  passable  condition,  and  where  a  contractor  with  the  city  failed. 
to  place  proper  guards  about  an  excavation,  thereby  causing  injury 
to  a  passer-by,  the  city  was  held  liable.2  And,  in  an  action  against 
a  railroad  company  by  a  passenger  for  injuries  resulting  from  an  ob- 
struction of  the  track  by  work  being  done  thereon,  it  is  no  defense 
that  defendant  had  placed  the  work  in  the  hands  of  an  independent 
contractor,  and  that  his  negligence  had  caused  the  obstruction.3  It 
is  a  precept  of  law  that,  when  the  performance  of  a  duty  rests  upon 
one  absolutely,  he  cannot  shift  it  to  the  shoulders  of  another,  but  is- 
still  liable  for  its  nonperformance,  although  the  fault  be  directly  at- 
tributable to  an  independent  contractor.  This  is  equally  true  of 
common-law  duties.  Thus,  the  occupant  of  a  house  on  whom  de- 

§  63.  iMattise  v.  Manufacturing  Co.,  46  La.  Ann.  1535,  16  South.  400; 
City  &  S.  Ry.  Co.  v.  Moores,  80  Md.  348,  30  Atl.  643;  Starrs  v.  City  of  Utica, 
17  N.  Y.  104;  Colgrove  v.  Smith,  102  Cal.  220,  36  Pac.  411;  Williams  v.  Irri- 
gation Co.,  96  Cal.  14,  30  Pac.  961;  Pye  v.  Faxon,  156  Mass.  471,  31  N.  E, 
640;  Hole  v.  Railroad  Co.,  6  Hurl.  &  N.  488. 

2  Storrs  v.  City  of  Utica,  17  N.  Y.  104;  City  of  Ironton  v.  Kelley,  38  Ohio- 
St.  50;  Wilson  v.  City  of  Troy,  60  Hun,  188,  14  N.  Y.  Supp.  721;  Id.,  135  N. 
Y.  96,  32  N.  E.  44;  City  of  Sterling  v.  Schiffmacher,  47  111.  App.  141;  City  of 
Beatrice  v.  Reid,  41  Xeb.  214,  59  N.  W.  770;  Kollock  v.  City  of  Madison, 
84  Wis.  458,  54  N.  W.  725;  Hepburn  v.  City  of  Philadelphia,  149  Pa.  St.  335, 
24  Atl.  279;  Ray  v.  City  of  Poplar  Bluff,  70  Mo.  App.  252. 

s  Carrico  v.  Railway  Co.,  39  W.  Va.  86,  19  S.  E.  571.  See,  also,  Donovan 
v.  Transit  Co.,  102  Cal.  245,  36  Pac.  516;  Lancaster  Ave.  Imp.  Co.  v.  Rhoads,. 
116  Pa.  St.  377,  9  Atl.  852. 


•§    63)  ABSOLUTE    PERSONAL   DUTIES. 

volved  the  duty  of  caring  for  a  lamp  which,  overhung  the  highway, 
.and  who  employed  an  independent  contractor  to  make  repairs  upon  it, 
was  liable  for  damages  caused  by  its  falling  on  a  passer-by.4 

•Obligations  Imposed  by  Statute. 

When  the  obligation  is  raised  by  statute  or  ordinance,  the  responsi- 
bility for  its  performance  is  absolute.  "But  when  certain  powers 
and  privileges  have  been  specifically  conferred  by  the  public  upon  an 
individual  or  corporation,  for  private  emolument,  in  consideration  of 
which  certain  duties  affecting  public  health  or  the  safety  of  public 
travel  have  been  expressly  assumed,  the  individual  in  receipt  of  the 
emoluments  cannot  be  relieved  of  liability  by  committing  the  perform- 
ance of  these  duties  to  another.  In  such  cases  liability  cannot  be 
evaded  by  showing  that  the  injury  resulted  from  the  fault  or  neglect 
of  a  third  person  employed  to  perform  these  public  duties."  5  And 
where  a  building  is  being  constructed  on  a  city  lot,  and  the  excava- 
tion in  the  sidewalk  is  not  protected  as  required  by  ordinance,  the 
owner  of  the  lot  is  liable  to  persons  injured  by  falling  therein,  al- 
though the  work  is  being  done  by  an  independent  contractor.6 

Work  Intrinsically  Dangerous. 

There  is  still  another  class  of  cases  where  the  contract  calls  for  the 
performance  of  work  intrinsically  dangerous.  Although  in  these 
cases  the  thing  to  be  done  may  be  lawful,  it  is  none  the  less  opposed 
to  the  spirit  and  policy  of  the  law  to  permit  the  person  who  has  as- 
sumed the  imposed  duty  to  escape  liability  by  shifting  it  to  a  con- 
tractor. Thus,  blasting  of  necessity  involves  danger  to  all  who  are 

*  Tarry  v.  Ashton,  1  Q.  B.  Div.  314;  Gleeson  v.  Railway  Co.,  140  U.  S. 
435,  11  Sup.  Ct.  859.  It  is  immaterial  what  time  the  accident  happened, — 
whether  before,  after,  or  during  the  work.  Pig.  Torts,  96.  And  see  Khron 
v.  Brock,  144  Mass.  516,  11  X.  E.  748.  As  to  party  walls  and  similar  cases, 
see  Ketcham  v.  Newman,  141  N.  Y.  205,  36  N.  E.  197;  Bower  v.  Peate,  1 
Q.  B.  Div.  321. 

B  Mr.  Justice  Clark  in  Lancaster  Ave.  Imp.  Co.  v.  Rhoads,  116  Pa.  St.  377, 
9  Atl.  852;  Wood,  Mast.  &  Serv.  pp.  621-624;  Ketcham  v.  Newman,  141  N. 
Y.  205,  36  N.  E.  197;  Smith  v.  Traders'  Exchange,  91  Wis.  360,  64  N.  W. 
1041;  Taylor,  B.  &  H.  Ry.  Co.  v.  Warner  (Tex.  Civ.  App.)  31  S.  W.  66;  Hole 
v.  Railroad  Co.,  6  Hurl.  &  N.  488. 

«  Spence  v.  Schultz,  103  Cal.  208,  37  Pac.  220;  Crenshaw  v.  Ullman,  113 
Mo.  633,  20  S.  W.  1077;  Savannah  &  W.  R.  Co.  v.  Phillips,  90  Ga.  829,  17 
S.  E.  82;  Lancaster  v.  Insurance  Co.,  92  Mo.  460,  5  S.  W.  23. 


166  LIABILITY   OF   MASTER   TO    THIRD    PERSONS.  (Ch.   4 

in  the  immediate  vicinity,  and  when  the  owner  of  premises  within  the 
city  employs  a  contractor  to  do  work  thereon  which  necessitates 
blasting  he  is  liable  for  injuries  caused  thereby  to  a  third  person.7 

When  the  work  to  be  done  is  itself  lawful,  and  is  likely  to  be  at- 
tended with  injurious  consequences,  it  is  manifestly  difficult  to  draw 
a  clear  line  of  distinction,  or  formulate  a  general  rule  determining 
just  what  degree  of  danger  is  necessary  to  place  the  responsibility 
on  the  employer.  It  would  seem,  however,  that  if  the  contemplated 
work  is  of  such  a  nature  that  in  the  exercise  of  ordinary  care  it  could 
be  done  with  safety,  although,  in  the  absence  of  such  care,  it  would 
be  attended  with  danger,  and  probable  injury,  to  third  persons,  the 
contractor  alone  would  be  responsible.8  Where  alterations  in  a  build- 
ing were  being  made  by  a  contractor,  and  a  wall,  weakened  by  age  and 
decay,  fell,  and  injured  a  third  person,  the  owner  was  not  liable,  for 
the  work  was  not  intrinsically  dangerous,  and  could  have  been  done 
with  safety  had  due  care  been  used.9 

Liability  for  Negligence  of  /Subcontractors. 

The  same  rules  apply  in  determining  responsibility  for  acts  of  a 
subcontractor  as  in  the  case  of  a  contractor.10  If  the  relation  of 
master  and  servant  exists  between  the  contractor  and  subcontractor, 
the  former  is  liable  for  the  negligence  of  the  latter,  otherwise  the 
responsibility  rests  solely  on  the  subcontractor.  And  this  general 
rule  is  subject  to  the  same  exceptions  that  modify  it  in  its  application 

i 

i  James'  Adm'r  v.  McMinimy,  98  Ky.  471,  20  S.  W.  435.  Burning  piles  of 
brush  is  not  intrinsically  a  dangerous  work.  Shute  v.  Princeton  Tp.,  58  Minn. 
337,  59  X.  W.  1050;  Carlson  v.  Stocking,  91  Wis.  432,  65  X.  W.  58;  Bren- 
nan  v.  Schreiner  (Super.  N.  Y.)  20  X.  Y.  Supp.  130;  Stone  v.  Railroad  Corp., 
19  N.  H.  427;  City  of  Tiffin  v.  McCormack,  34  Ohio  St.  638.  But  see  Tibbetts 
v.  Railroad  Co.,  62  Me.  437;  Brannock  v.  Elmore,  114  Mo.  55,  21  S.  W.  451; 
McCafferty  v.  Railroad  Co.,  61  X.  Y.  178;  Booth  v.  Railroad  Co.,  140  X.  Y. 
267,  35  X.  E.  592;  French  v.  Vix,  143  X.  Y.  90,  37  X.  E.  612;  Mahouey  v. 
Dankwart  (Iowa)  79  X.  W.  134. 

s  Engel  v.  Eureka  Club,  137  N.  Y.  100,  32  N.  E.  1052;  Conners  v.  Hennessey, 
112  Mass.  96;  McCafferty  v.  Railroad  Oo.,  61  X.  Y.  178;  Butler  v.  Hunter, 
7  Hurl.  &  X.  826. 

»  Engel  v.  Eureka  Club,  137  X.  Y.  100,  32  X.  E.  1052. 

10  Cuff  v.  Railroad  Co.,  35  X.  J.  Law,  17;  Xew  Orleans  &  X.  E.  R.  Co.  v. 
Reese,  61  Miss.  581;  The  Harold,  21  Fed.  428;  Hawke  v.  Brown,  28  App. 
Div.  37,  50  X.  Y.  Supp.  1032;  Rapson  v.  Cubitt,  9  Mees.  &  W.  710;  Knight 
v.  Fox,  5  Exch.  721;  Overton  v.  Freeman,  11  C.  B.  867. 


§    64)  WILLFUL    TORTS    OF    SERVANTS.  167 

between  employer  and  contractor.  Thus,  if  one  authorizes  the  doing 
of  an  unlawful  act,  the  responsibility  therefor  attaches  to  him,  no 
matter  what  subcontractor  or  deputy  may  hare  actually  committed 
the  wrong  or  injury;  as,  if  one,  without  special  authority,  makes  an 
excavation  in  the  sidewalk  of  a  public  street,  whereby  a  pedestrian 
is  injured,  he  is  liable,  although  the  injury  was  caused  by  the  negli- 
gence of  a  subcontractor  in  not  properly  guarding  the  excavation.11 

WILLFUL  TORTS  OF  SERVANTS. 

64.  The  master  is  liable  for  the  -willful  misconduct  of  his 
servant 

(a)  When   committed  •within  the   course   of  the  employ- 

ment. 

(b)  When  committed  -without  the  scope  of  the  employ- 

ment, if  the  misconduct  is  the  proximate  cause  of 
the  nonperformance  of  some  duty  owed  by  the 
master  to  the  aggrieved  person. 

Xot  only  is  the  master  responsible  for  the  negligence  of  his  serv- 
ant, as  already  stated,  but  he  is  liable  for  damages  caused  by  his 
acts  of  willful  misconduct,  within  certain  limitations.  When  the 
act  is  committed  at  the  express  command  or  direction  of  the  master, 
the  responsibility  of  the  latter  is  clearly  to  be  seen.  Thus,  if  the 
master  directs  his  servant  to  commit  a  trespass,  maintain  a  nui- 
sance, perpetrate  a  fraud,  or  convert  property  of  another  to  his  own 
use.1  And  if  the  authority  or  command  is  contingent  on  the  hap- 
pening of  a  certain  event,  or  is  otherwise  qualified,  and  the  serv- 

11  Creed  v.  Hartmann.  29  X.  Y.  591.  See,  also,  Overton  v.  Freeman,  11  C. 
B.  867.  When  both  contractor  and  subcontractor  are  negligent,  and  the  dam- 
age cannot  be  distinguished,  each  is  liable  for  the  whole.  Van  Steenburgh  v. 
Tobias,  17  Wend.  (X.  Y.)  5C2;  Partenheimer  v.  Van  Order,  20  Barb.  (X.  Y.) 
479. 

§  64.  i  Southerne  v.  Howe,  2  Rolle,  5-26.  See,  also,  State  v.  Smith,  78 
Me.  260,  4  Atl.  412;  Ketcham  v.  Newman,  141  X.  Y.  205,  36  X.  E.  197;  Car- 
man v.  Railway  Co.,  4  Ohio  St.  399;  Searle  v.  Parke  (N.  H.)  34  Atl.  744. 
Liability  of  master  for  criminal  acts.  Dyer  v.  Munday  [1895]  1  Q.  B.  742,  14 
Reports,  306;  Lloyd  v.  Business  College,  13  Ohio  dr.  Ct.  R.  358,  7  Ohio  Dec. 
318. 


168  LIABILITY    OF    MASTER    TO    THIRD    PERSONS.  (Cll.  4 

ant,  disregarding  the  limitation,  commits  the  tort,  the  master  is  still 
responsible;  as  if  the  guard  of  an  omnibus,  being  instructed  to  re- 
move disorderly  persons,  should  violently  eject  an  inoffensive  pas- 
senger.2 And  it  is  generally  sufficient  to  charge  the  master  if  the 
servant  acts  on  the  belief  that  the  circumstances  calling  for  the 
exercise  of  the  authority  have  arisen.3 

More  difficulty  is  experienced  in  attributing  the  tort  of  the  serv- 
ant to  the  master  in  cases  where  not  only  was  the  conduct  purely 
voluntary  on  the  servant's  part,  but  in  direct  violation  of  his  orders; 
as  where  defendant  directed  his  superintendent  to  test  a  steam  boiler 
up  to  150  pounds  pressure,  and  no  further,  and  the  latter,  in  a  spirit 
of  recklessness,  attempted  to  test  it  up  to  200  pounds,  thereby  caus- 
ing it  to  burst,  and  injure  plaintiff,  a  bystander.4  The  law  in  this  and 
similar  cases  would  seem  to  be  the  outgrowth  of  public  policy,  rather 
than  the  logical  expression  of  an  equitable  rule,  and  can  be  justified 
only  by  reasoning  as  to  the  actual  authority  with  which  the  servant  is 
vested,  and  which  alone  rendered  the  misconduct  and  injury  pos- 
sible. "To  visit  a  man  with  heavy  damages  for  the  negligence  of 
his  servant,  when  he  is  able  to  show  that  he  exercised  all  possible 
care  and  precaution  in  the  selection  of  him,  is  apt  to  strike  the  com- 
mon mind  as  unjust."  6 

Masters  Benefit. 

However  unwarranted  or  extreme  the  misconduct  of  the  servant 
may  be,  if  it  was  directly  connected  with  the  general  business,  and 
prompted  by  a  desire  to  promote  the  interests  of  his  master  in  the 
line  of  his  employment,  the  responsibility  reverts  to  the  superior; 
as  in  the  case  of  a  driver  who,  in  order  to  feed  his  horses,  and  enable 
him  to  complete  the  journey  he  was  making  for  his  master,  con- 
verted hay  for  his  horses'  use.6  And  where  a  brakeman,  in  the 

2  Seymour  v.  Greenwood,  7  Hurl.  &  N.  355,  6  Hurl.  &  N.  359;  Passenger 
R.  Co.  v.  Young,  21  Ohio  St.  518;  Southern  Ry.  Co.  v.  Wideman  (Ala.)  24 
South.  764;  Bayley  v.  Railroad  Co.,  L.  R.  8  C.  P.  148. 

s  Croft  v.  Alison,  4  Barn.  &  Aid.  590;  Eckert  v.  Transfer  Co.,  2  Mo.  App. 
36;  McCauley  v.  Hutkoff,  20  Misc.  Rep.  97,  45  N.  Y.  Supp.  85. 

«  Ochsenbein  v.  Shapley,  85  N.  Y.  214. 

5  Hays  v.  Millar,  77  Pa.  St.  238,  242.  See,  also,  Postal  Telegraph  Cable 
Co.  v.  Brautley,  107  Ala.  683,  18  South.  321. 

e  Potulni  v.  Saunders,  37  Minn.  517,  35  N.  W.  379;  Walker  v.  Johnson,  28 
Minn.  147,  9  N.  W.  632;  Levi  v.  Brooks,  121  Mass.  501;  Voegeli  v.  Granite 


§    64)  WILLFUL    TORTS    OF    SERVANTS.  169 

course  of  his  duty  of  keeping  the  cars  free  from  intruders,  kicked  a 
boy,  who  fell  from  the  train  against  a  pile  of  wood,  and  thence  un- 
der the  wheels,  and  was  injured,  the  defendant  railroad  was  liable.7 
But  in  exercising  his  discretion  in  the  use  of  force  the  servant  must 
use  no  more  than  is  necessary,  nor  in  any  other  way  needlessly  exag- 
gerate the  injury  or  damage.8 

On  the  other  hand,  if  the  servant,  influenced  by  personal  motive, 
whim,  or  passion,  for  a  purpose  foreign  to  the  service  in  which  he 
is  engaged,  willfully  inflicts  injury  on  the  person  or  property  of  an- 
other, it  is  his  personal  tort,  not  the  master's.  Thus,  where  plain- 
tiff was  crossing  a  street-car  track,  and  the  driver  of  a  car  cursed 
him,  and  said,  "I  can  smash  you,  anyhow,"  and  then  let  go  the  brake, 
and  injured  him.9  And,  in  general,  his  authority  and  position  must 
not  be  used  by  the  servant  as  a  mere  pretext  for  willful  misconduct 
and  injury  to  others.10 

Co.,  49  Mo.  App.  643;  People  v.  Roby,  52  Mich.  577,  18  X.  W.  365;  Pitts- 
burgh, C.  &  St.  L.  Ry.  Co.  v.  Kirk,  102  Ind.  399,  1  N.  E.  849;  but  see  Sta- 
ples v.  Schmid,  18  R.  I.  224,  26  Atl.  193-196;  Crocker  v.  Railroad  Co.,  24 
•Conn.  249;  Knight  v.  Luce,  116  Mass.  586;  Youmans  v.  Paine,  86  Hun,  479, 
.35  N.  Y.  Supp.  50;  Postal  Telegraph  Cable  Co.  v.  Brantley,  107  Ala.  683,  18 
South.  321;  McDonald  v.  Franchere,  102  Iowa,  496,  71  N.  W.  427;  Nelson 
Business  College  Co.  v.  Lloyd  (Ohio  Sup.)  54  N.  E.  471.  But  see  Little  Rock 
Traction  &  Electric  Co.  v.  Walker  (Ark.)  45  S.  W.  57,  where  a  street-car  com- 
pany was  held  not  liable  for  arrest  and  prosecution  of  passenger. 

T  Rounds  v.  Railroad  Co.,  64  N.  Y.  129.  See,  also,  Johnson  v.  Railroad  Co., 
-58  Iowa,  348,  12  N.  W.  329. 

8  Jones  v.  Glass,  35  X.  C.  305;  Pennsylvania  R.  Co.  v.  Vandiver,  42  Pa.  St. 
:365;  Sanford  v.  Railroad  Co.,  23  X.  Y.  343;  Gallena  v.  Railroad  Co.,  13  Fed. 
116;  State  v.  Kinney,  34  Minn.  311,  25  X.  W.  705.  And  a  direction  by  de- 
fendant to  tear  down  plaintiff's  fence  warrants  no  inferred  authority  to  com- 
mit an  assault  on  the  person  of  plaintiff.  Wagner  v.  Haak,  170  Pa.  St.  495, 
.32  Atl.  1087. 

»  Wood  v.  Railway  Co.,  52  Mich.  402,  18  X.  W.  124.  But  see  Eckert  v. 
Transfer  Co.,  2  Mo.  App.  36.  And,  generally,  see  Wright  v.  Wilcox,  19  Wend. 
(X.  Y.)  343;  Pennsylvania  Co.  v.  Toomey,  91  Pa.  St.  256  (but  see  McClung 
v.  Dearborne,  134  Pa,  St  396,  19  Atl.  698);  Illinois  Cent.  R.  Co.  v.  Downey, 
18  111.  259;  De  Camp  v.  Railroad  Co.,  12  Iowa,  348;  Marion  v.  Railroad  Co., 
59  Iowa,  428,  13  X.  W.  415;  Moore  v.  Sanborne,  2  Mich.  519;  Sutherland  v. 
Ingalls,  63  Mich.  620,  30  X.  W.  342;  Kaiser  v.  McLean,  20  App.  Div.  32G,  46 
N.  Y.  Supp.  1038. 

10  Mali  v.  Lord,  39  N.  Y.  381;  Foster  v.  Bank,  17  Mass.  479;  Henry  v.  Rail- 
road Co.,  139  Pa.  St  289,  21  Atl.  157,  but  see  Burns  v.  Railroad  Co.,  4  App. 


170  LIABILITY    OF    MASTKR    TO    THIRD    PERSONS.  (Ch. 


SAME— TORTS  OUTSIDE  SCOPE  OF  EMPLOYMENT. 

65.  Where  the  servant,  acting  -without  the  scope  of  his 
employment,  commits  a  willful  tort,  whereby  an 
injury  is  done  to  a  person  to  whom  the  master 
owes  a  duty,  the  latter  is  still  liable. 

In  the  prior  consideration  of  the  liability  of  the  master  for  his 
servant's  torts  reference  has  been  had  to  the  relationship  existing 
between  the  master  and  servant  only,  but  it  is  to  be  observed  that 
the  privity  between  the  master  and  the  aggrieved  party  should  also- 
be  considered.  It  not  infrequently  happens  that  the  servant,  act- 
ing willfully  and  maliciously,  and  outside  the  scope  of  his  employ- 
ment, injures  one  to  whom  the  master  owes  a  special  duty.  In  such 
cases  the  master  is  liable,  his  responsibility  resting  purely  on  the 
failure  to  perform  the  duty,  the  servant's  misconduct  being  the  im- 
mediate  cause  of  such  failure.  Instances  of  this  kind  occur  most  fre- 
quently in  the  case  of  common  carriers,  who  owe  an  absolute  duty 
of  protection  to  their  passengers  from  insult  and  injury  by  their 
employe's.1  Thus,  in  the  case  of  a  passenger  who  was  attacked  by 
the  driver  of  a  street  car,  without  provocation,  and  wantonly  beaten 
and  bruised.2  But  the  same  rule  exists  in  other  vocations,  where 
the  duty  owed  the  aggrieved  person  is  not  of  so  high  a  character  as- 
that  of  the  common  carrier  to  the  passenger.  A  patron  of  a  the- 

Div.  426,  38  N.  Y.  Supp.  856;  Johanson  v.  Fuel  Co.  (Minn.)  75  N.  W.  719; 
Feneran  v.  Manufacturing  Co.,  20  App.  Div.  574,  47  X.  Y.  Snpp.  284. 

§  65.  i  Stewart  v.  Railroad  Co.,  90  N.  Y.  588,  overruling  Isaacs  v.  Railroad 
Co.,  47  X.  Y.  122;  Richberger  v.  Express  Co.,  73  Miss.  161,  18  South.  922; 
Gray  v.  Railroad  Co.,  168  Mass.  20,  46  X.  E.  397;  Southern  Ry.  Co.  v.  Wide- 
man  (Ala.)  24  South.  764;  Spade  v.  Railroad  Co.  (Mass.)  52  X.  E.  747;  Haver 
v.  Railroad  Co.  (X.  J.  Err.  &  App.)  41  Atl.  916;  Texas  &  P.  Ry.  Co.  v.  Hum- 
phries (Tex.  Civ.  App.)  48  S.  W.  201. 

2  Fisher  v.  Railway  Co.,  34  Hun  (X.  Y.)  433;  Craker  v.  Railroad  Co.,  3t> 
Wis.  657;  Bryant  v.  Rich,  106  Mass.  180;  Philadelphia  &  R.  R.  Co.  v.  Derby, 
14  How.  (U.  S.)  468;  Goddard  v.  Railway  Co.,  57  Me.  202;  McKinley  v.  Rail- 
road Co.,  44  Iowa,  314;  Sherley  v.  Billings,  8  Bush  (Ky.)  147  (per  contra 
Little  Miami  R.  Co.  v.  "Wetmore,  19  Ohio  St.  110);  Palmeri  v.  Railway  Co., 
133  X.  Y.  261,  30  N.  E.  1001;  Warner  v.  Pacific  Co.,  113  Cal.  105,  45  Pac.  187. 
See,  also,  consideration  of  this  matter  by  Thos.  S.  Gates  in  Texas  &  P.  Ry. 
Co.  v.  Scoville,  62  Fed.  730,  34  Am,  Law  Reg.  120. 


§    65)  TORTS    OUTSIDE    SCOPE    OF    EMPLOYMENT.  1 7 1 

ater  has  a  right  to  be  protected  while  in  the  theater,  and  if  the- 
ticket  agent  call  out  to  any  one  of  the  audience  to  "put  him  out" 
the  proprietor  will  be  liable  for  his  wrongful  ejectment.3  A  mer- 
chant owes  a  duty  to  customers  whom  he  has  invited  to  enter  his- 
store  or  premises,  and  is  responsible  for  willful  and  malicious  ar- 
rests 4  and  assaults5  upon  them  by  his  servants;  and,  even  where 
an  insane  servant  killed  a  person  who  was  in  the  master's  office  on 
business,  the  master  was  liable.6 

Hours  of  Employment  not  a  Test  of  Liability. 

While  it  is  true  that  the  master  is  not  liable  for  the  tort  of  hi» 
servant  committed  after  the  employment  is  ended,7  the  hours  of 
employment  do  not  constitute  a  satisfactory  or  decisive  test  of  lia- 
bility. For,  on  the  one  hand,  the  servant  may  commit  an  inde- 
pendent tort  during  the  hours  of  work,8  and,  on  the  other  hand,  he 
may  do  something  outside  of  working  hours,  either  negligent  or 
willful,  which  will  render  his  master  liable.9 

a  Drew  v.  Peer,  93  Pa.  St.  234.  And  see,  also,  Dickson  v.  Waldron,  135 
Ind.  507,  34  N.  E.  506,  and  35  X.  E.  1. 

*  Geraty  v.  Stern,  30  Hun  (N.  Y.)  426;  Clack  v.  Supply  Co.,  72  Mo.  App. 
506;  Knowles  v.  Bullene,  71  Mo.  App.  341;  Stranahan  Bros.  Catering  Co.  y~ 
Coit,  55  Ohio  St.  398,  45  X.  E.  634  (but  see  Mali  v.  Lord,  39  N.  Y.  381). 

e  Mallach  v.  Ridley  (Sup.)  9  X.  Y.  Supp.  922. 

e  Christian  v.  Railway  Co.,  90  Ga.  124,  15  S.  E.  701.  Duty  of  railroad 
company  to  one  standing  on  its  platform.  Ohio  &  M.  Ry.  Co.  v.  Simms,  43 
111.  App.  260.  And  if  in  a  saloon  an  intoxicated  person,  in  the  presence  of  the 
proprietor,  attach  a  burning  piece  of  paper  to  his  drunken  companion's  clothes, 
the  proprietor  is  liable  for  damages  resulting.  Rommel  v.  Schambacher,  120- 
Pa.  St.  579,  11  AtL  779;  Brazil  v.  Peterson,  44  Minn.  212,  46  N.  W.  331. 

7  Yates  v.  Squires,  19  Iowa,  26;  Baird  v.  Pettit,  70  Pa.  St.  477-483;  Hurst 
r.  Railroad  Co.,  49  Iowa,  76;  Baltimore  &  O.  R.  Co.  v.  State,  33  Md.  542-554. 
But  see  Ewald  v.  Railway  Co.,  70  Wis.  420,  36  N.  W.  12. 

s  Hower  v.  Ulrich,  156  Pa.  St.  410,  27  Atl.  37. 

a  Xoblesville  &  E.  Gravel  Road  Co.  v.  Cause,  76  Ind.  142;  Broderick  v.  De- 
pot Co.,  56  Mich.  261,  22  N.  W.  802;  Morier  v.  Railway  Co.,  31  Minn.  351, 
17  X.  W.  952;  Rosenbaum  v.  Railroad  Co.,  38  Minn.  173,  36  N.  W.  447;  Wink 
v.  Weiler,  41  111.  App.  336;  Evansville  &  R.  R.  Co.  v.  Maddux,  134  Ind.  571, 
33  X.  E.  345. 


172  LIABILITY    OF    MASTER    TO    THIRD    PERSONS.  (Ch.   4 


INDEPENDENT  TOETS. 

66.  For  the  independent,  individual  torts  of  his  servants 
the  master  is  not  liable.1  The  question  of  what 
conduct  is  -within  and  -what  is  -without  the  course 
of  employment  is  ordinarily  one  of  fact  for  the  jury. 

But  when  one  who  is  in  fact  a  servant  commits  a  tort,  it  is  not  clear 
what  amount  of  deviation  from  the  course  of  his  employment  is  suf- 
ficient to  interrupt  the  relation  so  as  to  relieve  the  master  from  lia- 
bility. In  the  earlier  cases  a  very  slight  deviation  was  held  sufficient 
to  exonerate  the  master,  but  they  are  no  longer  generally  followed  in 
this  respect.  Strong  distinctions  appear  in  the  different  classes  of 
cases.  Thus,  a  carrier  may  be  liable  for  forbidden  assaults  by  his 
agents  upon  passengers,  to  whom  he  owes  a  peculiar  duty,2  but  when 
the  duty  is  performed  the  liability  ceases,  and  an  assault  .upon  a 
passenger  after  he  has  left  the  train  creates  no  responsibility  upon 
the  railroad  company.3  Nor  is  the  company  responsible  for  a  purely 
personal  encounter  between  its  employe's  and  persons  between  whom 
and  the  corporation  there  is  no  privity.*  But  a  master  is  liable  for 
the  act  of  his  clerk  in  assaulting  another  because  he  refused  to  pay 
for  a  bicycle,5  or  of  his  bartender  in  ejecting  a  person  from  his  sa- 
loon.6 The  driving  cases  are  analogous.  If  the  driver,  abandoning 
his  master's  service,  engages  in  a  journey  wholly  foreign  to  the  em- 
ployment, and  for  a  purpose  exclusively  his  own,  the  master  is  not 

§  66.     i  Hower  v.  Ulrich,  156  Pa.  St.  410,  27  Atl.  37. 

2  Baltimore  &  O.  R.  Co.  v.  Barger,  80  Md.  23,  30  Atl.  560.  Although  the 
assault  was  committed  in  resenting  an  insult.  Texas  &  P.  Ry.  Co.  v.  Wil- 
liams, 10  C.  C.  A.  463,  62  Fed.  440;  Savannah,  F.  &  W.  Ry.  Co.  v.  Quo,  103 
Ga.  125,  29  S.  E.  607;  Williams  v.  Gill,  122  N>.  C.  967,  29  S.  E.  879;  Louisville 
&  N.  R.  Co.  v.  Donaldson  (Ky.)  43  S.  W.  439. 

s  Central  Ry.  Co.  v.  Peacock,  69  Md.  257,  14  Atl.  709;  Hanson  v.  Railway 
Co.,  75  111.  App.  474. 

*Gilliam  v.  Railroad  Co.,  70  Ala.  268;  Candiff  v.  Railway  Co.,  42  La.  Ann. 
477,  7  South.  601.  See,  also,  Cofleld  v.  McCabe,  58  Minn.  218,  59  N.  W.  1005; 
Golden  v.  Newbrand,  52  Iowa,  59,  2  N.  W.  537. 

5  Baylis  v.  Cycle  Co.  (City  Ct.  Brook.)  14  N.  Y.  Supp.  933. 

«  Fortune  v.  Trainor,  65  Hun,  619,  19  N.  Y.  Supp.  598;  Brazil  v.  Peterson, 
44  Minn.  212,  46  N.  W.  331. 


§    66)  INDEPENDENT    TORTS.  173 

liable  for  Ms  acts  while  so  engaged.7  But  where  a  driver,  delivering 
porter  by  the  barrel,  to  a  customer,  at  his  request  drove  to  a  store  to 
get  him  a  faucet,  and  by  reckless  driving  injured  plaintiff,  it  was  for 
the  jury  to  determine  whether  or  not  the  driver  was  acting  within  the 
scope  of  his  authority.8 

Substantially  the  same  distinction  holds  in  cases  of  false  arrest, 
It  was  formerly  held  in  New  York  that  the  test  of  liability  was  the 
command  of  the  master,  either  actual  or  implied.9  This  rule  did  not 
obtain  for  any  great  length  of  time.  It  was  soon  recognized  that  it 
was  the  course  of  employment,  not  the  command  of  the  master,  which 
determined  the  liability,  and  that  the  master  would  be  liable  although 
the  conduct  of  the  servant  exceeded  the  authority.10  The  distinction 
between  what  is  and  what  is  not  in  the  due  course  of  employment  i& 
well  illustrated  by  the  following  cases:  A  ticket  agent,  having 
caused  the  arrest  of  one  who  had  paid  him  good  money,  but  whom  he 
suspected  of  being  a  counterfeiter,  it  was  held  that  his  conduct  was 
merely  in  the  capacity  of  a  citizen,  and  not  in  that  of  an  employe"  of 
the  railroad  company.11  But  where  a  dispute  arose  as  to  the  amount 
of  change  which  had  been  given  to  the  purchaser  by  the  ticket  agent, 
and  the  latter  followed  her  to  the  platform,  charged  her  with  passing 
counterfeit  money,  detained  her,  and  called  her  vile  names,  it  was 

7  Mitchell  v.  Crassweller,  13  C."  B.  237;  Aycrigg's  Ex'rs  v.  Railroad  Co., 
30  X.  J.  Law,  460;  Douglass  v.  Stephens,  18  Mo.  362;  Thorp  v.  Minor,  109 
X.  C.  152,  13  S.  E.  702;  Moore  v.  Sanborne,  2  Mich.  520;  Courtney  v.  Baker, 
00  X.  Y.  1;  Cavanagh  v.  Dinsmore,  12  Hun,  465;  Stone  v.  Hills,  45  Conn. 
44;  Mott  v.  Ice  Co.,  73  X.  Y.  543;  Joel  v.  Morison,  6  Car.  &  P.  501;  Ray- 
iier  v.  Mitchell,  2  C.  P.  Div.  357;  Storey  v.  Ashton,  L.  R.  4  Q.  B.  476. 

s  Guinney  v.  Hand,  153  Pa.  St.  404,  26  Atl.  20.  Servant  deviating  from  hia 
established  route  on  his  own  account,  and  leaving  his  team  unhitched,  mas- 
ter is  liable  for  injuries  caused  by  team  running  away.  Ritchie  v.  Waller, 
63  Conn.  155,  28  Atl.  29;  Quinn  v.  Power,  87  X.  Y.  535;  Flint  v.  Transporta- 
tion Co.,  34  Conn.  554;  Mulvehill  v.  Bates,  31  Minn.  364,  17  N.  W.  959;  Jos- 
lin  v.  Ice  Co.,  50  Mich.  516,  15  N.  W.  887. 

9  Mali  v.  Lord,  39  N.  Y.  381;   Lafitte  v.  Railroad  Co.,  43  La.  Ann.  34,  8 
South.  701. 

10  Lynch  v.  Railroad  Co.,  90  N.  Y.  77;    Smith  v.  Munch,  65  Minn.  256,  68- 
N.  W.  19;    Eichengreen  v.  Railroad  Co.,  96  Tenn.  229,  34  S.  W.  219. 

11  Mulligan  v.  Railway  Co.,  129  N.  Y.  506,  29  N.  E.  952;    Davis  v.  Hough- 
tellin,  33  Neb.  582,  50  X.  W.  765;   Allen  v.  Railroad  Co.,  L.  R.  6  Q.  B.  65;    Ed- 
wards v.  Railway  Co.,  L.  R.  5  C.  P.  445. 


174  LIABILITY   OF    MASTER    TO    THIRD    PERSONS.  (Ch.   4 

held  that  the  agent's  conduct  was  in  the  line  of  his  employment;  that 
he  was  endeavoring  to  protect  its  interests,  and  recover  its  property ; 
that  the  tort  was  not  his  individual  wrong,  and  that  the  company 
-was  liable.12 

Each  case  must  be  determined  in  the  light  of  the  attendant  facts, 
.and  whether  the  particular  conduct  is  within  the  course  of  the  em- 
ployment is  ordinarily  a  question  of  fact  for  the  jury.13  Where,  how- 
ever, there  is  no  evidence  forming  a  reasonable  basis  for  the  con- 
clusion that  the  particular  conduct  was  in  the  course  of  the  employ- 
ment, the  court  should  take  the  case  from  the  jury.1* 

Real  and  Personal  Property — No  Distinction  in  Principle. 

It  was  formerly  supposed  that  the  duty  resting  upon  the  owner  of 
real  estate  was  of  a  higher  order  than  any  connected  with  personalty, 
.and  that  for  the  negligence  of  one  employed  thereon  for  the  owner's 
benefit  he  would  be  held  to  a  more  strict  accounting.  This  distinc- 
tion between  owners  of  real  estate  and  owners  of  personalty  is  no 
longer  recognized.15 

12  Palmeri  v.  Railway  Co.,  133  X.  Y.  261,  30  X.  E.  1001;  Fortune  v.  'Trainor, 
•65  Hun,  619,  19  X.  Y.  Supp.  598;  Smith  v.  Webster,  23  Mich.  298;  Oakland 
•City  Agricultural  &  Industrial  Soc.  v.  Bingham,  4  Ind.  App.  545,  31  X.  E.  383; 
Harden  v.  Felch,  109  Mass.  154;  Cameron  v.  Express  Co.,  48  Mo.  App.  99; 
Kolzem  v.  Railroad  Co.  (Com.  PI.)  1  Misc.  Rep.  148,  20  N.  Y.  Supp.  700; 
Duggan  v.  Railroad  Co.,  159  Pa.  St.  248,  28  Atl.  182;  Staples  v.  Schmid,  18 
K.  I.  224,  26  Atl.  193. 

is  Smith  v.  Spitz,  156  Mass.  319,  31  X.  E.  5;  Guinney.  v.  Hand,  153  Pa. 
•St  404,  26  Atl.  20;  Brunner  v.  Telegraph  Co.,  151  Pa.  St.  447,  25  Atl.  29;  Lang 
v.  Railroad  Co.,  80'  Hun,  275,  30  X.  Y.  Supp.  137;  Tinker  v.  Railroad  Co., 
71  Hun,  431,  24  X.  Y.  Supp.  977,  distinguishing  Mulligan  v.  Railway  Co.,  129 
K  Y.  506,  29  X.  E.  952;  Pittsburgh,  Ft.  W.  &  C.  Ry.  Co.  v.  Maurer,  21  Ohio 
.St  421;  Dells  v.  Stollenwerk,  78  Wis.  339,  47  X.  W.  431;  Robinson  v.  Rail- 
way Co.,  94  Wis.  345,  68  X.  W.  961. 

i*  Towanda  Coal  Co.  v.  Heeman,  86  Pa.  St,  418;  Bank  of  Xew  South  Wales 
T.  Owston,  4  App.  Cas.  270. 

IB  Reedie  v.  Railway  Co.  (1849)  4  Exch.  243;  Bush  v.  Steinman  (1799)  1  Bos. 
.&  P.  404;  Quarman  v.  Burnett  (1840)  6  Mees.  &  W.  499;  McCafferty  v.  Rail- 
road Co.,  61  N.  Y.  178,  distinguishing  Storrs  v.  City  of  Utica,  17  X.  Y.  104; 
Water  Co.  v.  Ware,  16  Wall.  566;  Hay  v.  Cohoes  Co.,  2  X.  Y.  159. 


§    67)  COMMON    CARRIER   OF    PASSENGERS.  175 

CHAPTER  V. 

COMMON  CARRIER  OF  PASSENGERS. 

67.  Definition. 

68.  The  Relation  of  Passenger  and  Carrier. 

69.  Termination  of  Relation. 

70.  Arrival  of  Passenger  at  Destination. 

71.  Transfer  of  Passenger  to  Connecting  Carrier. 

72.  Ejection  of  Passenger. 

73.  Who  are  Passengers— Definition. 

74.  Prepayment  of  Fare. 

75.  Classification  of  Passengers. 

76.  The  Contract. 

77.  The  Ticket  as  Evidence. 

78.  Compensation. 

79.  Liability  to  Passengers. 

80.  Liability  for  Delay. 

81.  Limitation  of  Liability. 

DEFINITION. 

67.  Any  person,  partnership,  or  corporation  -whose  gen- 
eral business,  either  in  whole  or  in  part,  consists 
in  the  transportation  of  passengers  for  hire  or  ben- 
efit of  any  kind,  is  a  common  carrier.  They  are: 

(a)  Public  carriers,  -who  are  bound  to  accept  for  trans- 

portation, -without  discrimination  as  to  compensa- 
tion or  service,  all  proper  persons  -who  are  not  for 
any  reason  liable  to  injure  other  passengers;1  or 

(b)  Private  carriers,  who  carry  only  incidentally  or  un- 

der special  contracts. 

§  67.  i  Eads  v.  Railway  Co.,  43  Mo.  App.  536;  but  need  not  carry  one  with 
•contagious  disease,  Paddock  v.  Railroad  Co.,  37  Fed.  841;  nor  on  Sunday, 
Walsh  v.  Railway  Co.,  42  Wis.  23;  nor  an  insane  person,  Meyer  v.  Railway 
Co.,  4  C.  C.  A.  221,.  54  Fed.  116;  Atchison.  T.  &  S.  F.  R.  Co.  v.  Weber,  33 
Kan.  543,  6  Pac.  877;  nor  a  person  so  intoxicated  as  to  be  disgusting  or 
annoying  to  other  passengers,  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Vandyne, 
57  Ind.  576;  Vinton  v.  Railroad  Co.,  11  Allen  (Mass.)  304. 


176  COMMON    CARRIER    OF    PASSENGERS.  (Ch.   5- 

In  its  ordinary  significance,  the  term  "common  carrier"  is  applied 
to  public  carriers  only,  but  it  is  no  less  applicable  to  any  person  or 
company  which  transports  people  for  hire.  It  is  of  the  former  class, 
so  largely  in  the  majority,  that  this  chapter  mainly  treats.  The 
duties  and  liabilities  of  a  private  carrier  are  greatly  abridged.  He 
is  bound  to  carry  those  only  whom  he  may  select,  and  his  duty  to- 
wards them  is  discharged  by  the  exercise  of  ordinary  care  only^ 
Where  railroad  contractors,  operating  a  construction  train,  take  on 
a  passenger  for  hire  as  a  mere  favor,  they  are  responsible  only  for 
the  exercise  of  such  skill  and  care  in  its  management  and  operation 
as  ordinarily  prudent  and  cautious  men  would  exercise  under  similar 
circumstances.2  In  such  a  case  the  court  said  of  the  contractors: 
"They  did  not  hold  themselves  out  as  capable  of  carrying  passengers 
safely,  they  had  no  arrangements  for  passenger  service,  and  they 
were  not  required  to  make  provisions  for  the  protection  of  the  roadr 
such  as  are  usually  adopted  and  exacted  of  railroad  companies."  * 
If,  however,  the  carriage  of  persons  upon  construction  trains  is  cus- 
tomary, persons  having  no  knowledge  of  a  contrary  rule  of  the  com- 
p..ny  would  have  a  right  to  rely  on  the  supposed  authority  of  the 
conductor  in  charge  to  grant  permission  to  ride  thereon.* 

THE  RELATION  OF  PASSENGER  AND  CARRIER. 

68.  The  relation  of  passenger  and  carrier  begins  -when  the 
person  intending  passage  has  entered  the  vehicle 
or  has  entered  upon  the  grounds  or  premises  of  the 
carrier  in  the  customary  manner  for  the  purpose  of 
embarkation  "within  a  reasonable  time.1 

The  relation  of  passenger  and  carrier  must  usually  be  inferred 
from  circumstances.  A  person  about  to  take  passage  upon  a  train 

2  Shoemaker  v.  Kingsbury,  12  Wall.  369. 

s  Shoemaker  v.  Kingsbury,  12  Wall.  369. 

*  St.  Joseph  &  W.  R.  Co.  v.  Wheeler,  35  Kan.  185,  10  Pac.  461.  But  see 
Evansville  &  R.  R.  Co.  v.  Barnes,  137  Ind.  306,  36  N.  E.  1092.  Logging  com- 
pany a  carrier.  Albion  Lumber  Co.  v.  De  Nobra,  19  C.  C.  A.  168,  72  Fed.  739. 

§  68.  i  Chicago  &  E.  I.  R.  Co.  v.  Chancellor,  60  111.  App.  525.  A  reason- 
able time.  Harris  v.  Stevens,  31  Vt.  79.  Intention  to  take  a  train  by  per- 
son waiting  in  station  makes  him  a  passenger.  Grimes  v.  Pennsylvania  Co., 
36  Fed.  72. 


>§    68)  THE    RELATION    OF    PASSENGER    AND    CARRIER.  177 

does  not  formally  deliver  his  body  over  to  tbe  conductor  or  otber 
agent  of  tbe  company;  he  merely  conducts  bimself,  directs  bis  move- 
ments, in  a  manner  usual  witb  tbose  about  to  undertake  a  journey 
in  similar  circumstances.  Tbe  point  to  be  determined  is  whether 
the  would-be  traveler  has  so  conducted  himself  in  the  circumstances 
that  the  carrier  must  be  deemed  to  have  accepted  him  as  its  pas- 
senger, and,  if  this  point  is  affirmatively  shown,  it  is  immaterial 
that  the  contemplated  journey  has  not  been  actually  begun.  There 
are,  of  course,  certain  reasonable  limitations  to  such  an  inference  of 
a  contract;  and  so,  where  a  person  boarded  a  railway  train  after  it 
had  started,  it  was  held  that  he  did  not  thereby  become  a  passenger 
until  he  had  reached  a  safe  place  in  the  car.2  But  where  the  carrier 
provides  a  waiting  room  at  its  station,  and  a  person,  intending  pas- 
sage within  a  reasonable  time,  enters  such  room  to  await  the  train, 
he  becomes,  and  is  entitled  to  all  the  rights  of,  a  passenger.3  And 
when  a  person  attempts  to  board  an  omnibus  or  street  car  which 
has  slowed  up  or  stopped  in  response  to  his  signal,  whether  he  is 
successful  or  not,  he  is  none  the  less  a  passenger,  while  the  attempt 
is  being  made  with  the  knowledge  and  acquiescence  of  the  carrier.4 
The  implied  invitation  of  the  carrier  to  the  public  to  become  passen- 
gers upon  its  vehicles  does  not  cover  every  time  and  place;  the  time 
must  be  proper,  the  place  suitable,  and  the  traveler  must  offer  him- 
self in  an  ordinarily  prudent  and  reasonable  manner;  and  where  a 
would-be  passenger  ran,  rapidly  and  carelessly,  directly  in  front  of 
an  incoming  train,  it  was  held  that  he  did  not  hold  himself  in  read- 

2  Merrill  v.  Railroad  Co.,  139  Mass.  238,  1  N.  E.  548;  Sharrer  v.  Paxson, 
171  Pa.  St.  26,  33  Atl.  120. 

a  Gordon  v.  Railroad  Co.,  40  Barb.  546;  Grimes  v.  Pennsylvania  Co.,  36  Fed. 
72;  Phillips  v.  Railway  Co.  (N.  C.)  32  S.  E.  388;  Wells  v.  Railroad  Co.,  25 
App.  Div.  365,  49  N.  Y.  Supp.  510;  St.  Tx>uis  S.  W.  Ry.  Co.  v.  Franklin  (Tex. 
Civ.  App.)  44  S.  W.  701;  St.  Louis  S.  W.  Ry.  Co.  v.  Griffith,  12  Tex.  Civ.  App. 
631,  35  S.  W.  741. 

*  Brien  v.  Bennett,  8  Car.  &  P.  724;  Smith  v.  Railway  Co.,  32  Minn.  1, 
18  N.  W.  827.  But  mere  fact  of  signaling  and  intent  of  driver  to  stop  ear 
is  not  sufficient  to  establish  the  relation.  Donovan  v.  Railway  Co.,  65  Conn. 
201,  32  Atl.  350.  See,  also,  Schepers  v.  Railroad  Co.,  126  Mo.  665,  29  S.  W. 
712;  Jones  v.  Railroad  Co.,  163  Mass.  245,  39  X.  E.  1019;  Rogers  v.  Steamboat 
Co.,  86  Me.  261,  29  Atl.  1069;  Washington  &  G.  R.  Co.  v.  Patterson,  9  App. 
D.  C.  423;  Young  v.  Railroad  Co.  (Mass.)  50  N.  E.  455;  Chicago  &  E.  I.  R. 
Co.  v.  Chancellor,  60  111.  App.  525. 
BAR.NEG.— 12 


178  COMMON    CARRIER    OF    PASSENGERS.  (Ch.   5 

iness  to  be  taken  as  a  passenger,  nor  present  himself  in  a  proper 
way.6  But  the  actual  purchase  of  a  ticket  or  entrance  into  the  ve- 
hicle of  the  carrier  is  not  essential  to  the  establishment  of  the  rela- 
tion of  passenger  and  carrier.6  Thus,  a  person  who  is  injured  while 
attempting  to  board  a  train  under  the  direction  of  the  servants  of 
the  carrier  is  a  passenger,  whether  a  ticket  has  been  purchased  or 
not; 7  and  a  person  who  enters  the  carrier's  train,  with  its  consent, 
before  it  is  ready  to  start,  is  an  accepted  passenger.8 

TERMINATION   OF  RELATION. 

69.  The  relation  of  passenger  and  carrier  is  terminated  by 

(a)  The  arrival  of  the  passenger  at  his  destination; 

(b)  The  transfer  of  the  passenger  to  connecting  carrier; 

(c)  The  ejection  of  the  passenger  from  the  vehicle. 

SAME— ARRIVAL  OF  PASSENGER  AT  DESTINATION. 

70.  The  relation  of  passenger  and  carrier   is  ordinarily 

terminated  only  by  the  voluntary  departure  of  the 
passenger  from  the  vehicle  and  premises  of  the  car- 
rier at  the  end  of  the  journey,  provided  such  de- 
parture is  made  -within  a  reasonable  time  and  in  the 
usual  way.1 

B  Webster  v.  Railroad  Co.,  161  Mass.  298,  37  N.  E.  165;  Dodge  v.  Steamship 
Co.,  148  Mass.  207,  19  X.  E.  373. 

e  Rogers  v.  Steamboat  Co.,  86  Me.  261,  29  Atl.  1069;  Allender  v.  Railroad 
Co.,  37  Iowa,  264;  Gordon  v.  Railroad  Co.,  40  Barb.  546.  But  see  Gardner 
*.  Northampton  Co.,  51  Conn.  143;  Indiana  Cent.  Ry.  Co.  v.  Hudelsou,  13 
Ind.  325. 

7  Warren  v.  Railroad  Co.,  8  Allen  (Mass.)  227;  McDonald  v.  Railroad  Co., 
26  Iowa,  124;  Allender  v.  Railroad  Co.,  37  Iowa,  264;  Norfolk  &  W.  R.  Co. 
v.  Groseclose's  Adm'r,  88  Va.  267,  13  S.  E.  454.  Per  contra,  Indiana  Cent.  Ry. 
Co.  v.  Hudelson,  13  Ind.  325. 

s  Hannibal  &  St.  J.  R.  Co.  v.  Martin,  111  111.  219;  Lent  v.  Railroad  Co.,  120 
N.  Y.  467,  24  X.  E.  653.  And  see  Poucher  v.  Railroad  Co.,  49  X.  Y.  2(53;  Gard- 
ner v.  Railroad  Co.,  94  Ga.  538,  19  S.  E.  757. 

§§  69-70.  i  Pittsburg,  C.  &  St.  L.  Ry.  Co.  v.  Martin  (Super.  Ct.  Gin.)  2 
Ohio  N.  P.  353;  St.  Louis  S.  W.  Ry.  Co.  v.  Griffith,  12  Tex.  Civ.  App.  631,  35 
S.  W.  741.  Reasonable  time.  Chicago,  K.  &  W.  R.  Co.  v.  Frazer,  55  Kan.  582, 
40  Pac.  923;  Smith  v.  Railway  Co.,  29  Or.  539,  46  Pac.  136,  780.  If  he  de- 


§   70)  ARRIVAL    OF    PASSENGER    AT    DESTINATION. 

The  passenger  may,  however,  sever  the  relation  at  any  intermedi- 
ate point  by  abandoning  the  contract  of  carriage  and  surrendering; 
his  rights  thereunder.2  But  the  intention  to  abandon  the  contract 
must  be  reasonably  certain,  and  leaving  the  conveyance  for  a  tem- 
porary purpose,3  or  to  pass  from  one  vehicle  to  another,4  or  by  ren- 
dering assistance  to  the  carrier  or  his  servants  in  case  of  an  acci- 
dent,6 does  not  constitute  a  surrender  of  his  rights  as  a  passenger.. 

Getting  Off  at  Stations. 

Ordinarily  the  passenger  does  not  surrender  his  rights  as  such  at: 
the  termination  of  his  journey  by  the  mere  act  of  getting  off  the 
train.  He  is  still  entitled  to  the  care  and  protection  of  the  carrier 
until  he  has  had  a  reasonable  opportunity  to  leave  the  station  and 
premises.8  At  the  terminus  of  the  journey,  as  in  transit,  it  is  the 
duty  of  the  carrier  to  use  the  highest  degree  of  care  in  the  execu- 
tion of  his  contract.  To  this  end  he  must  stop  the  conveyance  at 
the  usual  point  of  debarkation,  and  not  at  a  distance  on  either  side.77 

barks  at  a  place  other  than  the  station,  and  is  injured  while  crossing  the- 
tracks,  and  without  invitation,  he  is  not  a  passenger.  Buckley  v.  Railroad 
Co.,  161  Mass.  26,  36  N.  E.  583.  One  getting  on  wrong  train,  and  walking: 
back  to  station  and  falling  into  cattle  guard,  cannot  recover.  Finnegau  v. 
Railway  Co.,  48  Minn.  378,  51  N.  W.  122;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v~ 
Krouse,  30  Ohio  St.  222;  Imhoff  v.  Railway  Co.,  20  Wis.  344. 

2  Buckley  v.  Railroad  Co.,  161  Mass.  26,  36  N.  E.  583.  But  see  Johnson  T-.. 
Railroad  Co.,  63  Md.  106. 

s  Parsons  v.  Railroad  Co.,  113  N.  Y.  355,  21  N.  E.  145;  Keokuk  Northern 
Line  Packet  Co.  v.  True,  88  111.  608;  Watson  v.  Railroad  Co.,  92  Ala.  320,  &•• 
South.  770;  Dice  v.  Locks  Co.,  8  Or.  60;  Jeffersonville,  M.  &  I.  R.  Co.  v.  Riley, 
39  Ind.  568.  But  see  Johnson  v.  Railroad  Co.,  125  Mass.  75;  Illinois  Cent_ 
R.  Co.  v.  Whittemore,  43  111.  420;  McClure  v.  Railroad  Co.,  34  Md.  532;  Den- 
ver Tramway  Co.  v.  Reed,  4  Colo.  App.  500,  36  Pac.  557. 

*  Xorthrup  v.  Assurance  Co.,  43  N.  Y.  516;  Hulbert  v.  Railroad  Co.,  40  X_ 
Y.  145;  Chicago  &  A.  R.  Co.  v.  Winters,  175  111.  293,  51  N.  E.  901;  Washing- 
ton &  G.  R.  Co.  v.  Patterson,  9  App.  D.  C.  423. 

o  Street  Ry.  Co.  v.  Bolton,  43  Ohio  St.  224,  1  N.  E.  333. 

«  Allerton  v.  Railroad  Co.,  146  Mass.  241,  15  N.  E.  621.  And  compare  Platt 
v.  Railroad  Co.,  4  Thomp.  &  a  406;  Pittsburg,  C.  &  St.  L.  Ry.  Co.  v.  Mar- 
tin, 2  Ohio  X.  P.  353,  3  Ohio  Dec.  493;  Atlanta  Consol.  St.  Ry.  Oo.  v.  Bates, 
103  Ga.  333,  30  S.  E.  41.  See,  also,  cases  cited  in  section  70,  note  1,  ante. 

7  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Cook,  12  Ind.  App.  109,  38  N.  E.  1104  - 
Brulard  v.  The  Alvin,  45  Fed.  766;  Miller  v.  Railway  Co.,  93  Ga.  630,  21  S.  EL 
153;  Dudley  v.  Smith,  1  Camp.  16-7;  International  &  G.  X.  Ry.  Co.  v.  Terry,. 


180  COMMON    CARRIER    OF   PASSENGERS.  (Ch.   5 

To  stop  the  train  and  announce  a  station  is  an  invitation  to  alight 
at  that  point,  and  if  such  point  is  remote  from  the  platform,  or  other- 
wise unsuitable,  the  carrier  is  liable  for  resultant  injury  to  a  prop- 
erly debarking  passenger.8  While  it  is  no  part  of  the  carrier's  duty 
to  assist  passengers  in  alighting,9  the  stations  should  be  an- 
nounced,10 and  a  reasonable  length  of  time  afforded  for  debarka- 
tion.11 

62  Tex.  380;  Illinois  Cent.  R.  Co.  v.  Able,  59  111.  131;  Illinois  Cent.  R.  Co. 
v.  Chambers,  71  111.  519;  Reed  v.  Railway  Co.,  100  Mich.  507,  59  N.  W.  144; 
East  Tennessee,  V.  &  G.  R.  Co.  v.  Lockhart,  79  Ala.  315;  White  Water  R.  Co. 
v.  Butler,  112  Ind.  598,  14  X.  E.  599;  Alabama  G.  S.  R.  Co.  v.  Sellers,  93  Ala. 
9,  9  South.  375;  Georgia  Railroad  &  Banking  Co.  v.  McCurdy,  45  Ga.  288; 
Mobile  &  O.  R.  Co.  v.  McArthur.  43  Miss.  180;  New  Orleans,  J.  &  G.  N.  R. 
Co.  v.  Hurst,  36  Miss.  660;  Southern  R.  Co.  v.  Kendrick,  40  Miss.  374;  For- 
dyce  v.  Dillingham  (Tex.  Civ.  App.)  23  S.  W.  550;  Texas  &  P.  Ry.  Co.  v.  Man- 
sell,  Id.  549;  West  Chicago  St.  R.  Co.  v.  Walsh,  78  111.  App.  595. 

s  Columbus  &  I.  C.  Ry.  Co.  v.  Fan-ell,  31  Ind.  408;  Terre  Haute  &  I.  R. 
Co.  v.  Buck,  96  Ind.  346;  Philadelphia,  W.  &  B.  R.  Co.  v.  McCormick,  124 
Pa.  St.  427,  16  Atl.  848;  Philadelphia  &  R.  R.  Co.  v.  Edelstein  (Pa.  Sup.)  16 
Atl.  847;  McNulta  v.  Ensch,  134  111.  46,  24  N.  E.  631;  Gulf,  C.  &  S.  F.  Ry. 
Co.  v.  Sain  (Tex.  Civ.  App)  24  S.  W.  958;  International  &  G.  N.  R.  Co.  v. 
Smith  (Tex.  Sup.)  14  S.  W.  642;  Memphis  &  L.  R.  Ry.  Co.  v.  Stringfellow,  44 
Ark.  322;  Richmond  &  D.  R.  Co.  v.  Smith,  92  Ala.  237,  9  South.  223;  Hous- 
ton &  T.  C.  R.  Co.  v.  Dotson  (Tex.  Civ.  App.)  38  S.  W.  642.  But  the  mere 
calling  of  the  name  of  a  station  will  not,  under  all  circumstances,  be  con- 
strued an  invitation  to  alight.  Central  R.  Co.  of  New  Jersey  v.  Van  Horn,  38 
N.  J.  Law,  133;  Smith  v.  Railway  Co.,  88  Ala.  538,  7  South.  119;  England 
v.  Railroad  Co.,  153  Mass.  490,  27  N.  E.  1;  Philadelphia,  W.  &  B.  R.  Co.  v. 
Anderson,  72  Md.  519,  20  Atl.  2;  International  &  G.  X.  R.  Co.  v.  Eckford,  71 
Tex.  274,  8  S.  W.  679;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Lucas,  119  Ind.  583,  21 
X.  E.  968;  Richmond  City  Ry.  Co.  v.  Scott,  86  Va.  902,  11  S.  E.  404;  Griffith  v. 
Railway  Co.,  98  Mo.  168,  11  S.  W.  559;  Cockle  v.  Railway  Co.,  L.  R.  5  C.  P. 
457;  Id.,  L.  R.  7  O.  P.  321;  Lewis  v.  Railway  Co.,  L.  R.  9  Q.  B.  66;  Weller  v. 
Railway  Co.,  L.  R.  9  C.  P.  126;  Bridges  v.  Railway  Co.,  L.  R.  7  H.  L.  213. 

»  Xunn  v.  Railroad  Co.,  71  Ga,  710;  Rabeu  v.  Railway  Co.,  73  Iowa,  579,  35 
X.  W.  645;  Id.,  74  Iowa,  732,  34  N.  W.  621;  Sevier  v.  Railroad  Co.,  61  Miss. 
8;  Texas  &  P.  Ry.  Co.  v.  Alexander  (Tex.  Civ.  App.)  30  S.  W.  1113.  But  a 
sleeping-car  company  is  bound  to  awaken  passengers.  Pullman  Palace-Car 
Co.  v.  Smith,  79  Tex.  468,  14  S.  W.  993. 

loRaben  v.  Railway  Co.,  73  Iowa,  579,  35  N.  W.  645;  Hurt  v.  Railway 
Co.,  94  Mo.  255,  7  S.  W.  1;  Southern  R.  Co.  v.  Kendrick,  40  Miss.  374;  Louis- 
ville, N.  O.  &  T.  R.  Co.  v.  Mask,  64  Miss.  738,  2  South.  360. 

11  Keller  v.  Railroad  Co..  27  Minn.  178,  6  X.  W.  486;   Raben  v.  Railway 


§    71)  TRANSFER    OF    PASSENGER    TO    CONNECTING    CARRIER.  181 

% 

SAME— TRANSFER  OF  PASSENGER  TO  CONNECTING 

CARRIER. 

71.  In  the  absence  of  special  contract,  the  carrier's  liabil- 
ity is  at  an  end  "when  he  delivers  the  passenger  for 
further  transportation  over  the  connecting  line  or 
route  of  another  carrier. 

The  principles  underlying  the  termination  of  liability  by  delivery 
to  connecting  carriers  apply  equally  to  carriers  of  passengers  and 
carriers  of  goods,  and  will  be  found  more  fully  and  conveniently  dis- 
cussed under  the  latter  head.1 

When  the  obligation  of  the  initial  carrier  is  to  transport  only  to 
the  end  of  his  line,  his  liability  to  the  passenger  ceases  when  that 
point  is  reached.2  This  much  is  beyond  controversy.  The  diffi- 
culty lies  in  determining  what  constitutes  a  contract  for  carriage 
beyond  the  terminus  of  the  initial  carrier's  line,  so  as  to  extend  his 
liability  beyond  that  point.  That  the  initial  carrier  may  so  obli 

Co.,  73  Iowa,  579,  35  N.  W.  645;  Hurt  v.  Railway  Co.,  94  Mo.  255,  7  S.  W.  1; 
Straus  v.  Railroad  Co.,  75  Mo.  185;  Mississippi  &  T.  R.  Co.  v.  Gill,  66  Miss. 
39,  5  South.  393;  Fairmount  &  A.  S.  P.  Ry.  Co.  v.  Stutler,  54  Pa.  St.  375; 
Pennsylvania  R.  Co.  v.  Kilgore,  32  Pa.  St.  292;  Mulhado  v.  Railroad  Co., 
30  .N.  Y.  370;  Ferry  v.  Railway  Co.,  118  X.  Y.  497,  23  N.  E.  822;  Baker  v. 
Railroad  Co.,  118  X.  Y.  533,  23  X.  E.  885;  Wood  v.  Railway  Co.,  49  Mich.  370, 
13  X.  W.  779;  Finn  v.  Railway  Co.,  8(5  Mich.  74,  48  N.  W.  696;  Krai  v.  Rail- 
way Co.,  71  Minn.  422,  74  X.  W.  166;  Minor  v.  Railroad  Co.,  21  App.  Div.  307, 
47  X.  Y.  Supp.  307;  Cable  v.  Railway  Co.,  122  X.  C.  892,  29  S.  E.  377;  Pierce 
v.  Gray,  63  111.  App.  158;  Luse  v.  Railway  Co.,  57  Kan.  361,  46  Pac.  768; 
Southern  R.  Co.  v.  Mitchell,  98  Tenn.  27,  40  S.  W.  72.  If  one  about  to  alight 
is  injured  by  the  premature  starting  of  the  train,  he  may  recover.  Washing- 
ton &  G.  R.  Co.  v.  Harmon's  Adm'r,  147  U.  S.  571,  13  Sup.  Ct.  557;  Hill  v. 
Railway  Co.,  158  Mass.  458,  33  N.  E.  582;  Gilbert  v.  Railway  Co..  160  Mass. 
403,  36  N.  E.  60;  Onderdonk  v.  Railway  Co.,  74  Hun,  42,  26  X.  Y.  Supp.  310; 
Bernstein  v.  Railroad  Co.,  72  Hun,  46,  25  X.  Y.  Supp.  669;  Chicago  &  A.  R. 
Co.  v.  Arnol,  144  111.  261,  33  X.  E.  204;  Illinois  Cent.  R.  Co.  v.  Taylor,  46  111. 
App.  141. 

§  71.    i  See  post,  pp.  290-296. 

2  Hartan  v.  Railroad  Co.,  114  Mass.  44;  Pennsylvania  R.  Co.  v.  Connell,  112 
111.  295;  Kerrigan  v.  Railroad  Co.,  81  Cal.  248,  22  Pac.  677;  Atchison,  T.  & 
S.  F.  R.  Co.  v.  Roach,  35  Kan.  740,  12  Pac.  93. 


182  COMMON    CARRIER    OF    PASSENGERS.  (Cll.   5 

gate  himself  is  unquestioned,3  and  it  is  equally  well  settled  that  he 
may  contract  against  any  liability  beyond  the  terminus  of  his  own 
line.* 

In  the  absence  of  an  unequivocal,  express  contract,  the  weight  of 
authority  seems  to  be  to  the  effect  that  a  through  ticket  is  merely 
evidence  to  be  considered  and  weighed  in  connection  with  other  cir- 
.-cumstances,5  although  in  some  of  the  earlier  cases,  which  have  not 
been  expressly  overruled,  it  was  held,  following  the  rule  in  Mus- 
•  champ  v.  Lancaster  &  P.  J.  Ry.  Co.,6  that  the  first  carrier  issuing  a 
.through  ticket  is  prima  facie  liable  for  the  entire  distance.7 

No  matter  what  the  contract  of  the  first  carrier  may  be,  as  to  the 
point  of  termination  of  his  liabilitj7,  the  right  of  the  passenger  to 
«ue  the  particular  carrier  on  whose  line  the  injury  is  suffered  is  un- 
. affected  thereby.8 

»  Quimby  v.  Vanderbilt,  17  N.  Y.  306;  Van  Buskirk  v.  Roberts,  31  N.  Y. 
••661;  Bussman  v.  Transit  Co.,  9  Misc.  Rep.  410,  29  N.  Y.  Supp.  1066;  Gary  v. 
Kailroad  Co.,  29  Barb.  35;  Candee  v.  Railroad  Co.,  21  Wis.  589;  Cherry  v. 
Railroad  Co.,  1  Mo.  App.  Rep'r,  253;  Nashville  &  C.  R.  Co.  v.  Sprayberry,  9 
:Heisk,  (Tenn.)  852;  Watkins  v.  Railroad  Co.,  21  D.  C.  1.  That  such  a  con- 
tract is  not  ultra  vires,  see  Buffett  v.  Railroad  Co.,  40  N.  Y.  168;  Bissell  v. 
Hailroad  Co.,  22  N.  Y.  258;  Chicago  &  A.  R.  Co.  v.  Dumser,  161  111.  190,  43  N. 
.E.  698. 

*  Berg  v.  Railroad  Co.,  30  Kan.  561,  2  Pac.  639;  Moore  v.  Railway  Co.  (Tex. 
••Civ.  App.)  45  S.  W.  609. 

sHartan  v.  Railroad  Co.,  114  Mass.  44;  Pennsylvania  R.  Co.  v.  Connell,  112 
111.  295;  Young  v.  Railroad  Co.,  115  Pa.  St.  112,  7  Atl.  741;  Nashville  &  C.  R. 
•Oo.  v.  Sprayberry,  9  Heisk.  (Tenn.)  852;  Knight  v.  Railroad  Co.,  56  Me.  234; 
Hood  v.  Railroad  Co.,  22  Conn.  1.  And  see  Brooke  v.  Railroad  Co.,  15  Mich. 
332;  Kessler  v.  Railroad  Co.,  61  N.  Y.  538. 
e  8  Mees.  &  W.  421. 

7  Illinois  Cent.  R.  Co.  v.  Copeland,  24  111.  332;  Najac  v.  Railroad  Co.,  7 
-Allen  (Mass.)  329;  Wilson  v.  Railroad  Co.,  21  Grat.  (Va.)  654;  Candee  v. 
IRailroad  Co.,  21  Wis.  589;  Carter  v.  Peck,  4  Sneed  (Tenn.)  203;  Barkinan  v. 
Itailroad  Co.,  89  Fed.  453;  Omaha  &  R.  V.  Railway  Co.  v.  Crow,  54  Neb. 
"747,  74  N.  W.  1066.  The  English  cases  support  this  rule.  Great  Western  Ry. 
v«Co.  v.  Blake,  7  Hurl.  &  N.  987;  Mytton  v.  Railway  Co.,  4  Hurl.  &  N.  614. 

sSchopruan  v.  Railroad  Corp.,  9  Gush.  (Mass.)  24;  Chicago  &  R.  I.  R.  Co. 
•  r.  Fahey,  52  111.  81;  Johnson  v.  Railroad  Co.,  70  Pa.  St.  357.  But  see  Furst- 
venheim  v.  Railroad  Co.,  9  Heisk.  (Tenn.)  238. 


§72)  EJECTION    OF   PASSENGER.  183 

SAME— EJECTION  OF  PASSENGER, 

72.  The  carrier  may,  in  certain  circumstances,  eject  the 
passenger  from  the  vehicle,  and  thus  terminate  the 
relation,  provided 

(a)  That  the  ejection  is  made  at  a  suitable  place,  and 

(b)  That  it  is  made  with  due  regard  for  the  passenger's 

safety,  and  that   no   more  force  is  used  to  accom- 
plish the  purpose  than  is  necessary. 

Whenever  the  passenger  becomes  guilty  of  disorderly  conduct,  or 
it  seems  inevitable  or  probable  that  he  will  be  guilty  of  rudeness  or 
indecency,  the  carrier  is  justified  in  ejecting  him  from  the  vehicle.1 
And  if  the  passenger  is  intoxicated,  and  uses  boisterous,  profane,  or 
otherwise  indecent  language,  it  is  not  only  the  right,  but  the  duty, 
of  the  carrier,  towards  other  passengers,  to  eject  him.2  But  mere 
drunkenness,  if  unaccompanied  by  specific  acts  of  offensive  conduct, 
does  not  ordinarily  warrant  expulsion.3  If  the  passenger  refuses  to 
pay  his  fare,4  or  to  otherwise  comply  with  proper  and  reasonable  reg- 

§  72.  i  Vinton  v.  Railroad  Co.,  11  Allen  (Mass.)  304;  Sullivan  v.  Railroad 
Co.,  148  Mass.  119,  18  N.  E.  GTS:  Baltimore,  P.  &  C.  R.  Co.  v.  McDonald,  68 
Ind.  316;  Peavy  v.  Railroad  C^.,  81  Ga.  485,  8  S.  E.  70;  Chicago  City  Ry. 
Co.  v.  Pelletier,  134  111.  120,  24  X.  E.  770. 

2  Yinton  v.  Railroad  Co.,  11  Allen  (Mass.)  304.  And  see,  generally,  as  to 
drunken  passengers,  Missouri  Pac.  Ry.  Co.  v.  Evans,  71  Tex.  361,  9  S.  W.  325; 
Cincinnati,  I.,  St.  L.  &  C.  R.  Co.  v.  Cooper,  120  Ind.  469,  22  N.  E.  340;  Strand 
v.  Railway  Co.,  67  Mich.  380,  34  N.  W.  712;  Murphy  v.  Railway  Co..  118 
Mass.  228;  Chicago  &  A.  R:  Co.  v.  Randolph,  65  111.  App.  208;  Edgerly  v. 
Railroad  Co.  (X.  H.)  36  Atl.  55S;  Robinson  v.  Rockland,  T.  &  C.  St.  Ry.  Co., 
87  Me.  387.  32  Atl.  994. 

s  Putnam  v.  Railroad  Co.,  55  N.  Y.  108;  Prendergast  v.  Compton,  8  Car.  & 
P.  454, 

4  Ohio  &  M.  R.  Co.  v.  Muhling,  30  111.  9;  Pittsburgh,  C.  &  St.  L.  Ry.  Co. 
v.  Dewin,  86  111.  296;  Great  Western  Ry.  Co.  v.  Miller,  19  Mich.  305;  Gibson 
v.  Railroad  Co.,  30  Fed.  904;  O'Brien  v.  Railroad  Co.,  15  Gray  (Mass.)  20; 
State  v.  Campbell,  32  X.  J.  Law,  309;  Wyman  v.  Railroad  Co.,  34  Minn.  210, 
25  X.  W.  349;  Lillis  v.  Railway  Co.,  64  Mo.  464;  Grogan  v.  Railway  Co.,  39 
W.  Va.  415,  19  S.  E.  593.  Cf.  Ramsden  v.  Railroad  Co.,  104  Mass.  117;  Tre- 
zona  v.  Railway  Co.,  107  Iowa,  22,  77  X.  W.  486;  McGhee  v.  Reynolds  (Ala.) 
23  South.  68;  Illinois  Cent.  R.  Co.  v.  Marlett  (Miss.)  23  South.  583;  Krueger 
v.  Railway  Co.,  68  Minn.  445,  71  X.  W.  683. 


1S4  COMMON    CARRIER    OF    PASSENGERS.  (Cll.   5 

illations,  he  forfeits  his  right  to  be  carried; 5  or  if  he  insists  on  using 
the  vehicles  of  the  carrier  for  the  purpose  of  vending  his  wares.0 
But  because  a  carrier  has  the  right  to  reject  an  applicant  for  pas- 
sage, as  being  of  bad  character  or  otherwise  objectionable,  it  does 
not  follow  that,  having  accepted  him,  he  retains  an  option  to  eject 
him  at  any  time  for  a  like  reason.7 

Tender  after  Refusal. 

A  tender  of  fare  or  an  offer  of  compliance  with  regulations  may 
nevertheless  be  effectually  made  by  the  recalcitrant  passenger  at  any 
time  before  the  carrier  has  actually  begun  to  eject  him,  and  the  car- 
rier is  then  bound  to  accept  such  proffer,  and  to  permit  him  to  con- 
tinue his  journey.8  When,  however,  the  carrier  has  already  taken 
decisive  steps  towards  his  removal,  as  stopping  the  train,  such  a  ten- 
der need  not  be  accepted,  and  the  ejection  may  be  carried  out.9  In 
such  cases,  if  the  passenger  has  already  paid  the  whole  or  a  part  of 
his  fare,  the  amount  paid  must  be  refunded,  before  the  right  of  ejec- 
tion is  complete.10 

5  Illinois  Cent.  R.  Co.  v.  Whittemore,  43  111.  420;  McClure  v.  Railroad  Co., 
34  Md.  532;  Denver  Tramway  Co.  v.  Reed,  4  Colo.  App.  500,  36  Pac.  557; 
Noble  v.  Railroad  Co.,  4  Okl.  534,  46  Pac.  483;  Decker  v.  Railroad  Co.,  3 
Okl.  553,  41  Pac.  CIO;  McMillan  y.  Railway  Co.,  172  Pa.  St.  523,  33  Atl.  500. 

e  The  D.  R.  Martin,  11  Blatchf.  233,  Fed.  Cas.  No.  1,030;    Com.  v.  Power, 

7  Mete.  (Mass.)  590;   Barney  v.  Steamboat  Co.,  67  N.  Y.  301. 
7  Pearson  T.  Duane,  4  Wall.  605. 

s  Hutch.  Carr.  (2d  Ed.)  §  591a;  Ham  v.  Canal  Co.,  142  Pa.  St.  617,  21  Atl. 
1012;  O'Brien  v.  Railroad  Co.,  80  N.  Y.  236;  Louisville  &  N.  R.  Co.  v.  Garrett, 

8  Lea  (Tenn.)  438;    Texas  &  P.  Ry.  Co.  v.  Bond,  62  Tex.  442;    South  Caro- 
lina R.  Co.  v.  Nix,  68  Ga.  572;   Baltimore  &  O.  R.  Co.  v.  Norris,  17  Ind.  App. 
189.  49  N.  E.  554. 

o  Hibbard  v.  Railroad  Co.,  15  N.  Y.  455;  O'Brien  v.  Railroad  Co.,  80  N.  Y. 
236;  Pease  v.  Railroad  Co.,  101  N.  Y.  367,  5  N.  E.  37;  Hoffbauer  v.  Railroad 
Co.,  52  Iowa,  342,  3  N.  W.  121;  State  v.  Campbell,  32  N.  J.  Law,  309;  Cin- 
cinnati, S.  &  C.  R.  Co.  v.  Skillman,  39  Ohio  St.  444;  Pic-kens  v.  Railroad  Co., 
104  N.  C.  312,  10  S.  E.  556;  Clark  v.  Railroad  Co.,  91  N.  C.  506;  Atchison,  T. 
&  S.  F.  R.  Co.  v.  Dwelle,  44  Kan.  394,  24  Pac.  500;  Louisville,  N.  &  G.  S. 
R.  Co.  v.  Harris,  9  Lea  (Tenn.)  180;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Turner 
(Tex.  Civ.  App.)  23  S.  W.  83;  Harrison  v.  Fink.  42  Fed.  787;  Guy  v.  Railway 
Co.,  6  Ohio  N.  P.  3;  Illinois  Cent.  R.  Co.  v.  Bauer,  66  111.  App.  121. 

10  Bland  v.  Railroad  Co.,  55  Cal.  570;  Iseman  v.  Railroad  Co.,  52  S.  C.  566, 
30  S.  E.  488;  Lake  Shore  &  M.  S.  R.  Co.  v.  Orndorff,  55  Ohio  St.  589,  45  N.  E. 
447.  But  see  Hoffbauer  v.  Railroad  Co.,  52  Iowa,  342,  3  N.  W.  121,  contra, 


§    72)  EJECTION    OF    PASSENGER.  185 

The  Ejection  must  ~be  Made  at  a  Suitable  Place. 

In  those  states  where  there  is  no  statute  requiring  railroads,  in 
cases  of  ejection,  to  put  off  the  offending  passenger  at  a  station  or 
near  a  dwelling  house,  the  train  may  be  stopped  and  the  passenger 
required  to  get  off  at  any  point11 

Exercise  of  Reasonable  Care. 

In  exercising  the  right  of  ejection,  reasonable  care  must  be  taken 
that  the  person  is  not  needlessly  or  wantonly  exposed  to  ijajury  or 
suffering.  He  must  not  be  ejected  in  a  dangerous  place,12  nor  from 
a  train  in  rapid  motion.13  No  more  force  must  be  used  than  is  es- 
sential for  the  purpose,  and  the  carrier  will  be  liable  for  any  unnec- 
essary or  excessive  force  or  willful  injury.14  Kesistance  by  the  pas- 
senger may,  however,  be  overcome  by  a  necessary  amount  of  force.15 

where  the  amount  paid  was  no  more  than  the  carrier  was  entitled  to  for  the 
distance  the  passenger  was  carried  before  being  ejected.  And  compare 
Burnham  v.  Railroad  Co.,  63  Me.  29S;  Cheney  v.  Railroad  Co.,  11  Mete. 
(Mass.)  121. 

11  Illinois  Cent.  R.  Co.  v.  Whittemore,  43  111.  420;    O'Brien  v.  Railroad  Co., 
15  Gray  (Mass.)  20;   Brown  v.  Railroad  Co.,  51  Iowa,  235,  1  N.  W.  487;    Wy- 
rnan  v.  Railroad  Co.,  34  Minn.  210,  25  N.  W.  349;    Lillis  v.  Railway  Co.,  64 
Mo.  464;   Great  Western  Ry.  Co.  v.  Miller,  19  Mich.  305;    McClure  v.  Railroad 
Co.,  34  Md.  532;    Young  v.  Railway  Co.  (La.)  25  South.  69;    Guy  v.  Railway 
Co.,  6  Ohio  X.   T.  3;    McCook   v.   Xorthup   (Ark.)  45   S.   W.   547;     Burch   v. 
Railroad  Co.,  3  App.  D.  C.  346;   Boehm  v.  Railway  Co.,  91  Wis.  592,  65  N.  W. 
506. 

12  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Kirkbride,  79  Tex.  457,  15  S.  W.  495;    Louis- 
ville &  N.  R.  Co.  v.  Ellis'  Aclm'r,  97  Ivy.  330,  30  S.  W.  979;    Johnson  v.  Rail- 
road Co.,  104  Ala.  241,  16  South.  75;   Edison  v.  Railway  Co.  (Miss.)  23  South. 
369;   Louisville  &  N.  R.  Co.  v.  Johnson,  108  Ala.  62,  19  South.  51.     Ejection  of 
one  under  physical  disability.     Young  v.  Railway  Co.  (La.)  25  Sotith.  69. 

is  Sanford  v.  Railroad  Co.,  23  N.  Y.  343;  State  v.  Kinney,  34  Minn.  311,  25 
N.  W.  705;  Brown  v.  Railroad  Co.,  66  Mo.  588;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Kirkbride,  79  Tex.  457,  15  S.  W.  495;  Fell  v.  Railroad  Co.,  44  Fed.  248;  Bos- 
worth  v.  Walker,  27  C.  C.  A.  402,  83  Fed.  58;  Union  Pac.  Ry.  Co.  v.  Mitchell, 
56  Kan.  324,  43  Pac.  244. 

14  New  Jersey  Steamboat  Co.  v.  Brockett,  121  U.  S.  637,  7  Sup.  Ct.  1039; 
Holmes  v.  Wakefield,  12  Allen  (Mass.)  580;  Pennsylvania  R.  Co.  v.  Vandiver, 
42  Pa.  St.  365;  Bass  v.  Railroad  Co.,  36  Wis.  450;  Mykleby  v.  Railway  Co., 
39  Minn.  54,  38  N.  W.  763;  Evansville  &  I.  R.  Co.  v.  Gilmore,  1  Ind.  App.  468, 
27  N.  E.  992;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Kuenhle  (Tex.  App.)  16  S.  W.  177; 

is  Townsend  v.  Railroad  Co.,  56  N.  Y.  295. 


186  COMMON    CARRIER    OF    PASSENGERS.  (Ch.    U 

Wrongful  Ejection. 

When  a  passenger  is  wrongfully  expelled  from  a  train,  it  is  not 
necessary  for  the  protection  of  his  rights  that  he  resist,  in  order  that 
the  carrier  may  be  compelled  to  use  force.  It  is  amply  sufficient  if, 
at  the  demand  of  the  conductor,  he  leaves  the  car  under  protest.16 
If  the  attempt  to  remove  the  passenger  is  in  itself  wrongful,  he 
may  use  a  reasonable  amount  of  force  in  resisting;  but,  even  where 
the  passenger  is  right  and  the  conductor  wrong,  it  has  been  held 
to  be  contributory  negligence  to  resist  the  latter  by  engaging  in  an 
unnecessary  trial  of  strength.17  Of  course,  a  party  may  resist  when, 
in  the  circumstances,  resistance  is  necessary  for  the  protection  of  his 
life  or  to  prevent  serious  injury,  as  when  a  train  is  in  rapid  mo- 
tion.18 . 

WHO  ABE  PASSENGERS— DEFINITION. 

73.  Generally  speaking,  a  passenger  is  one,  other  than 
an  employe,  who,  in  accordance  with  the  reasona- 
ble regulations  of  the  carrier,  has  seasonably  pre- 
sented himself  for  transportation. 

Not  every  one  who  rides  upon  the  conveyances  of  a  common  car 
rier  is  entitled  to  exact  the  extraordinary  degree  of  care  which  the 

Knowles  v.  Railroad  Co.,  102  N.  C.  59,  9  S.  E.  7;  Jardine  v.  Cornell,  50  X.  J. 
Law,  485,  14  Atl.  590;  Brown  v.  Railroad  Co.,  "66  Mo.  588;  Philadelphia,  W. 
&  B.  R.  Co.  v.  Larkin,  47  Md.  155.  But  see  Pittsburgh,  C.,  C.  &  St.  L.  Ry. 
Co.  v.  Russ,  6  C.  C.  A.  597,  57  Fed.  822. 

i«  Southern  Kan.  Ry.  Co.  v.  Rice,  38  Kan.  398,  16  Pac.  817.  See,  also.  Pull- 
man Palace-Car  Co.  v.  Reed,  75  111.  125;  Hall  v.  Railroad  Co.,  15  Fed.  57; 
Bradshaw  v.  Railroad  Co.,  135  Mass.  407;  Townsend  v.  Railroad  Co.,  56  N.  Y. 
301;  Pennsylvania  R.  Co.  v.  Connell,  112  111.  296;  Ray  v.  Traction  Co.,  19 
App.  Div.  530,  4G  N.  Y.  Supp.  521;  Consolidated  Traction  Co.  v.  Taborn.  .",8 
N.  J.  Law,  1,  32  Atl.  685. 

IT  Brown  v.  Railroad  Co.,  7  Fed.  51,  65;   Hall  v.  Railroad  Co.,  15  Fed.  57. 

is  Southern  Kan.  Ry.  Co.  v.  Rice,  38  Kan.  398,  16  Pac.  817;  Hall  v.  Rail- 
road Co.,  15  Fed.  57;  Brown  v.  Railroad  Co.,  7  Fed.  51;  Sanford  v.  Railroad 
Co.,  23  N.  Y.  343;  English  v.  Canal  Co.,  66  N.  Y.  454;  Louisville,  N.  A.  &  C. 
Ry.  Co.  v.  Wolfe,  128  Ind.  347,  27  N.  E.  606.  In  the  last  two  cases  the  passen- 
ger had  paid  his  fare,  and  was  ejected  for  refusal  to  pay  again,  and  was 
in  each  instance  permitted  to  recover  for  injuries  due  to  his  reasonable  re- 
sistance. 


§    73)  WHO    ARE    PASSENGERS DEFINITION.  187 

carrier  is  bound  to  extend  towards  a  passenger.1  The  common  car- 
rier may  properly  set  apart  and  designate  certain  vehicles  for  the 
carriage  of  passengers  and  others  for  freight;  and  a  railroad  has 
the  undoubted  right  to  reserve  particular  cars  for  its  exclusive  use 
in  the  proper  conduct  of  its  business,  and  upon  which  it  is  not  bound 
to  carry  passengers,  as  pay  cars,2  private  cars,  and  hand  cars.3 
And,  if  the  company  makes  other  suitable  provision  for  transport- 
ing its  passengers,  it  is  not  compelled  to  admit  them  to  travel  on 
its  freight  trains.4  It  follows  that  the  relation  of  carrier  and  pas- 
senger does  not  exist  between  a  railroad  and  one  who,  either  sur- 
reptitiously or  by  force,  obtains  an  entrance  into  a  freight  train.5 
It  is,  of  course,  otherwise  if  the  company  habitually  permits  or 
tacitly  consents  to  the  use  of  its  freight  trains  by  passengers,  al- 
though such  carriage  is  prohibited  by  the  regulations  of  the  road.6 
But  when  there  is  no  coach  attached  to  the  train  at  all  fitted  or 
suitable  for  the  carriage  of  passengers,  or  calculated  to  invite  en- 
trance, and  the  well-known  regulations  forbid  such  carriage,  the 
burden  of  proof  falls  upon  the  person  claiming  damages  to  show  an 
invitation  or  permission,  either  express  or  implied,  to  enter  such 
train  as  a  passenger.7  "The  presumption  of  law  is  that  persons  rid- 

§  73.     i  St.  Joseph  &  W.  R.  Co.  v.  Wheeler,  35  Kan.  185,  10  Pac.  461. 

2  Southwestern  R.  Co.  v.  Singletou,  66  Ga.  252. 

3  Hoar  v.  Railroad  Co.,  70  Me.  65;    Willis  v.  Railroad  Co.,  120  N.  C.  508, 
26  S.  E.  784. 

*  Jenkins  v.  Railway  Co.,  41  Wis.  112;  Gardner  v.  Northampton  Co.,  51 
Conn.  143. 

5  Eaton  v.  Railroad  Co.,  57  N.  Y.  382;  Houston '&  T.  C.  Ry.  Co.  v.  Moore, 
49  Tex.  31;  Arnold  v.  Railroad  Co.,  S3  111.  273;  Thomas  v.  Railway  Co.,  72 
Mich.  355,  40  N.  W.  463;  Murch  v.  Railroad  Corp.,  29  N.  H.  9;  Hobbs  v.  Rail- 
way Co.,  49  Ark.  357,  5  S.  W.  586;  Louisville  &  N.  R.  Co.  v.  Hailey,  94 
Tenn.  383,  29  S.  W.  367;  San  Antonio  &  A.  P.  Ry.  Co.  v.  Lynch,  8  Tex.  Civ. 
App.  513,  28  S.  W.  252. 

«  Houston  &  T.  C.  Ry.  Co.  v.  Moore,  49  Tex.  31;  Lucas  v.  Railway  Co.,  33 
Wis.  41;  Dunn  v.  Railroad  Co.,  58  Me.  187;  Alabama  G.  S.  R.  Co.  v.  Yar- 
"brough,  83  Ala.  238,  3  South.  447;  St.  Joseph  &  W.  R.  Co.  v.  Wheeler,  35 
Kan.  185,  10  Pac.  461;  Burke  v.  Railway  Co.,  51  Mo.  App.  491;  Boehm  v. 
Railway  Co.,  91  Wis.  592,  65  N.  W.  506;  Arkansas  Midland  Ry.  Co.  v.  Grif- 
fith, 63  Ark.  491,  39  S.  W.  550. 

7  Houston  &  T.  C.  Ry.  Co.  v.  Moore,  -19  Tex.  31;  St.  Louis  S.  W.  Ry.  Co.  v. 
White  (Tex.  Civ.  App.)  34  S.  W.  1042. 


188  COMMON    CARRIER    OF    PASSENGERS.  (Ch.   5 

ing  upon  trains  of  a  railroad  carrier  which  are  manifestly  not  de- 
signed for  the  transportation  of  persons  are  not  lawfully  there;  and, 
if  they  are  permitted  to  be  there  by  the  consent  of  the  carrier's  em- 
ploye's, the  presumption  is  against  the  authority  of  the  employe's  to 
bind  the  carrier  by  such  consent.  But  such  presumption  may  be 
overthrown  by  special  circumstances,  as,  where  the  railroad  com- 
pany would  derive  a  benefit  from  the  presence  of  drovers  upon  its 
cattle  trains,  and  its  employe's  in  charge  of  such  trains  invite  or  per- 
mit drovers  to  accompany  their  cattle,  the  presumption  against  a 
license  to  the  person  thus  carried  may  be  overthrown."  8 

On  the  other  hand,  if  a  railroad  company  permits  any  of  its  freight 
trains  to  be  used  for  carrying  passengers,  it  is  equivalent,  so  far  as 
the  public  is  concerned,  to  authorizing  the  conductors  of  all  freight 
trains  to  receive  passengers; 9  and,  if  such  other  conductors  are  not 
so  authorized  or  are  expressly  forbidden  to  carry  passengers,  they 
are  in  the  nature  of  secret  limitations  upon  the  apparent  author- 
ity, and  not  binding  upon  third  persons  without  actual  notice.10 

Although  the  ordinary  passenger  pays  his  fare  in  consideration  of 
his  carriage,  the  compensation  may  be  indirect,  and  his  purpose  on 
the  train  other  than  that  of  mere  transportation.  Express  mes- 
sengers,11 newsboys,12  and  postal  clerks13  are  none  the  less  pas- 

sWaterbury  v.  Railroad  Co.,  17  Fed.  671. 

»  Dunn  v.  Railway  Co.,  58  Me.  187;  St.  Joseph  &  W.  R.  Co.  v.  Wheeler,  35 
Kan.  185,  10  Pac.  461;  Brown  v.  Railroad  Co.,  38  Kan.  634,  16  Pac.  942; 
Wagner  v.  Railway  Co.,  97  Mo.  512,  10  S.  W.  486;  Texas  &  P.  Ry.  Co.  v. 
Black,  87  Tex.  160,  27  S.  W.  118. 

10  Lawson  v.  Railway  Co.,  64  Wis.  447,  456,  24  N.  W.  618;    St.  Joseph  & 
W.  R.  Co.  v.  Wheeler,  35  Kan.  185,  10  Pac.  461;   Illinois  Cent.  R.  Co.  v.  Axley, 
47  111.  App.  307. 

11  Blair  v.  Railway  Co.,  66  N.  Y.  313;   Chamberlain  v.  Railroad  Co.,  11  Wis. 
238.     Cf.  Pennsylvania  Co.  v.  Woodworth,  26  Ohio  St.  585;    Yeomans  v.  Navi- 
gation Co.,  44  Cal.  71;    San  Antonio  &  A.  P.  Ry.  Co.  v.  Adams,  6  Tex.  Civ. 
App.  102,  24  S.  W.  839;    Voight  v.  Railway  Co.,  79  Fed.  561. 

12  Com.  v.  Vermont   &  M.  R.   Co.,  108  Mass.   7;    Yeomaus  v.   Navigation 
Co.,  44  Cal.  71. 

is  Pennsylvania  R.  Co.  v.  Price,  96  Pa.  St.  256;  N;olton  v.  Railroad  Corp., 
15  N.  Y.  444;  Seybolt  v.  Railroad  Co.,  95  N.  Y.  562;  Hammond  v.  Railroad 
Co.,  6  S.  C.  130;  Houston  &  T.  C.  R.  Co.  v.  Hampton,  64  Tex.  427;  Arrowsmith 
v.  Railroad  Co.,  57  Fed.  165;  Louisville  &  N.  R.  Co.  v.  Kinguian  (Ky.)  35 
S.  W.  264;  Norfolk  &  W.  R.  Co.  v.  Shott,  92  Va.  34,  22  S.  E.  811;  International 


§    73)  WHO    ARE    PASSENGERS DEFINITION.  189 

sengers  because  they  are  carried  under  special  contracts,  and  the  lia- 
bility of  the  carrier  towards  them  cannot  in  any  case  be  modified 
by  such  special  contract,  unless  they  are  privy  to  it;14  but  the  ab- 
solute duty  of  carrying  the  mails  is  imposed  by  United  States  stat- 
ute, and  cannot  be  modified  by  contract  limiting  or  abrogating  lia- 
bility for  injuries  to  agents  engaged  in  the  postal  service.15  Al- 
though traveling  on  Sunday  may  be  illegal  by  statute,  the  carrier  is 
not  thereby  relieved  of  liability.18 

If  the  carrier  receives  into  its  vehicles  the  passengers  of  another 
carrier,17  or  furnishes  motive  power  for  their  transportation,18  they 
become  the  passengers  of  the  carrier  so  transporting  them;  so,  also, 
of  the  servants  of  another  company.19 

Employes  as  Passengers. 

When  an  employ^  of  the  carrier  is  transported  daily  or  frequently 
to  and  from  his  work  in  the  vehicles  of  his  master,  without  charge, 
even  if  his  work  is  entirely  unconnected  with  the  operation  of  the 
road  or  system,  while  so  traveling  he  is  not  a  passenger,  and  his 

&  G.  N.  Ry.  Co.  v.  Davis  (Tex.  Civ.  App.)  43  S.  W.  540;  Collett  v.  Railway  Co., 
16  Q.  B.  984. 

11  Blair  v.  Railway  Co.,  66  N.  Y.  313;  Pennsylvania  Co.  v.  Woodworth,  26 
Ohio  St.  585;  Yeomans  v.  Navigation  Co.,  44  Cal.  71;  Hammond  v.  Railroad 
Co.,  6  S.  C.  130. 

1 5  Arrowsrnith  v.   Railroad  Co.,  57  Fed.  165;    Mellor  v.   Railway  Co.,  105 
Mo.  455,  16  S.  W.  849;    Seybolt  v.  Railroad  Co.,  95  N.  Y.  562.     Cf.  Pennsyl- 
vania R.  Co.  v.  Price,  96  Pa.  St.  256.     See,  also,  Louisville  &  N.  R.  Co.  v. 
Kingman  (Ky.)  35  S.  W.  264;    Norfolk  &  W.  R.  Co.  v.  Shott,  92  Va.  34,  22  S. 
E.  811. 

16  Carroll  v.  Railroad  Co.,  58  N.  Y.  126. 

if  Foulkes  v.  Railway  Co.,  4  C.  P.  Div.  267,  5  C.  P.  Div.  157;  White  v. 
Railroad  Co.,  115  N.  C.  G31,  20  S.  E.  191;  Reynolds  v.  Railway  Co.,  2  Rose.  N. 
P.  Ev.  735;  Dalyell  v.  Tyrer,  28  Law  J.  Q.  B.  52;  Martin  v.  Railway  Co.,  L. 
R.  3  Exch.  9.  And  see  Skinner  v.  Railway  Co.,  5  Exch.  787. 

is  Sehopman  v.  Railroad  Corp.,  9  Gush.  (Mass.)  24;  Galveston,  H.  &  S.  A. 
Ry.  Co.  v.  Parsley,  6  Tex.  Civ.  App.  150,  25  S.  W.  64. 

19  Zeigler  v.  Railroad  Co.,  52  Conn.  543;  Philadelphia,  W.  &  B.  R.  Co.  v. 
State,  58  Md.  372.  Cf.  Illinois  Cent.  R.  Co.  v.  Frelka,  110  111.  498;  Pennsyl- 
vania Co.  v.  Gallagher,  40  Ohio  St.  637;  In  re  Merrill,  54  Vt.  200;  Lockhart  v. 
Lichtenthaler,  46  Pa.  St.  151,  159;  Cumberland  Val.  R.  Co.  v.  Myers,  55 
Pa.  St.  288;  Brown  v.  Railway  Co.,  40  U.«C.  Q.  B.  333;  Vose  v.  Railway  Co., 
2  Hurl.  &  N.  728.  And  see  Torpy  v.  Railway  Co.,  20  U.  C.  Q.  B.  446;  Lacka- 
waniia  &  B.  R.  Co.  v.  Chenewith,  52  Pa.  St.  382. 


190  COMMON    CARRIER    OF    PASSENGERS.  (Ch.    5 

rights  are  determined  by  the  law  of  master  and  servant.20  But,  al- 
though he  pays  no  fare,  if  he  is  traveling  on  his  own  business  he  is 
a  passenger.21  And,  when  the  carrier  either  directly  or  indirectly 
receives  compensation  for  his  carriage,  he  is  a  passenger,  and  not  a 
servant;  as  if  the  transportation  is  considered  in  fixing  his  wages, 
or  a  deduction  is  made  therefrom  on  that  account.22  But  when 
transportation  is  given  an  employe'  at  irregular  or  infrequent  inter- 
vals, as  to  a  surveyor  who  was  hired  by  the  month,  and  was  being 
carried  from  his  home  to  the  place  of  his  work,  it  has  been  held  that 
he  can  recover  as  a  passenger  for  injuries  suffered  through  the  neg- 
ligence of  the  carrier.23 

Gratuitous  Passengers. 

The  extraordinary  duties  which  a  common  carrier  owes  to  its  pas- 
sengers do  not  depend  alone  on  the  consideration  paid  for  the  serv- 
ice. They  are  imposed  by  law  even  when  the  service  is  gratuitous.24 
The  leading  case  on  this  point  is  that  of  Philadelphia  &  K.  R.  Co.  v. 
Derby.25  The  president  of  one  railroad,  riding  on  the  invitation  of 
the  president  of  another  over  the  latter's  road,  was  injured  by  a  col- 
lision, and  was  allowed  to  recover  therefor;  the  court  saying  that 

20  Vick  v.  Railroad  Co.,  95  X.  Y.  267;    Gillshannon  v.  Railroad  Corp.,  10  Gush. 
(Mass.)  228;    Seaver  v.  Railroad  Co.,  14  Gray  (Mass.)  4G6;    New  York,  L.  E.  & 
W.  R.  Co.  v.  Burns,  51  N.  J.  Law,  340,  17  Atl.  630;    Ryan  v.  Railroad  Co., 
23  Pa.  St.  384;    O'Donnell  v.  Railroad  Co.,  59  Pa.  St.  239;    Russell  v.  Rail- 
road Co.,  17  N.  Y.  134;    Wright  v.  Railroad  Co.,  122  N.  C.  852,  29  S.  E.  100. 
Porter  on  palace  car.    Jones  v.  Railway  Co.,  125  Mo.  666,  28  S.  W.  883.    Con- 
tra, Hughson  v.  Railroad  Co.,  9  App.  D.  C.  98. 

21  Ohio  &  M.  R.  Co.  v.  Muhling,  30  111.  9;    Doyle  v.  Railroad  Co.,  162  Mass. 
66,  37  N.  E.  770.     But  see  Higgins  v.  Railroad  Co.,  36  Mo.  418. 

22  O'Donnell  v.  Railroad  Co.,  59  Pa.  St.  239,  in  seeming  opposition  to  Vick 
v.  Railroad  Co.,  95  N.  Y.  267;    but  in  the  latter  case  it  did  not  appear  that  the 
consideration  of  transportation  was  material  in  making  the  contract. 

23  Ross  v.  Railroad  Co.,  5  Hun  (N.  Y.)  488,  affirmed  in  74  N.  Y.  617. 

24  Todd  v.  Railroad  Co.,  3  Allen  (Mass.)  18;   Com.  v.  Vermont  &  M.  R.  Co., 
108  Mass.  7;    Littlejohn  v.  Railroad  Co.,  148  Mass.  478,  20  N.  E.  103;    Files 
v.  Railroad  Co.,  149  Mass.  204,  21  N.  E.  311;    Philadelphia  &  R.  R.  Co.  v.  Der- 
by, 14  How.  468;    The  New  World  v.  King,  16  How.  469;    Quimby  v.  Rail- 
road Co.,  150  Mass.  365,  368,  23  N.  E.  205;    Waterbury  v.  Railroad  Co.,  17  Fed. 
671;    Nolton  v.  Railroad  Corp.,  15  *?.  Y.  444;    Perkins  v.  Railroad  Co.,  24  N. 
Y.  197;   Jacobus  v.  Railway  Co.,  20  Minn.  125  (Gil.  110). 

2514  How.  468. 


WHO    ARK    PASSENGERS DEFINITION.  191 

the  defendant  railroad  owed  plaintiff  the  duty  of  safe  transporta- 
tion, independent  of  any  contract.  The  invitation  to  ride  free  must, 
however,  be  given  by  one  in  authority;  otherwise,  and  especially  if 
it  is  in  known  violation  of  rules,  he  is  not  a  passenger.26  But  a 
child  riding  with  her  parents  without  payment  of  fare  can  claim  the 
rights  of  a  passenger,  provided  she  is  within  the  age  at  w7hich  the- 
road  permits  children  to  ride  free.27  Stockmen  in  charge  of  stock 
to  look  after  them  in  transit,  traveling  on  drovers'  passes,  are  en- 
titled to  protection  and  safe  carriage,  as  ordinary  passengers.28 

It  is  held  by  some  courts  that  the  carrier  may,  by  contract,  limit 
his  liability  for  the  carriage  of  gratuitous  passengers.29 

Duty  to  Accept  Passengers. 

Those  who  hold  themselves  out  to  the  public  as  common  carriers 
of  persons  are  bound  to  accept  for  transportation  all  proper  persons 
who  apply  in  the  customary  manner. 3p  This  does  not  mean  that 

20  Hoar  v.  Railroad  Co.,  70  Me.  65;  Eaton  v.  Railroad  Co.,  57  N.  Y.  382; 
Houston  &  T.  C.  Ry.  Co.  v.  Moore,  49  Tex.  31;  Waterbury  v.  Railroad  Co., 
17  Fed.  671,  and  note;  Ohio  &  M.  Ry.  Co.  v.  Allender,  59  111.  App.  620;  Wil- 
cox  v.  Railway  Co.,  11  Tex.  Civ.  App.  487,  33  S.  W.  379;  Brevig  v.  Railway 
Co.,  64  Minn.  168,  66  N.  W.  401;  De  Palacios  v.  Railway  Co.  (Tex.  Civ.  App.) 
45  S.  W.  612;  Galaviz  v.  Railroad  Co.  (Tex.  Civ.  App.)  38  S.  W.  234. 

-'  Austin  v.  Railway  Co.,  8  Best  &  S.  327,  L.  R.  2  Q.  B.  442.  In  this  case  the 
child  was  3  years  and  3  months  old,  and  should  have  paid  half  fare,  yet  a 
recovery  was  permitted. 

28  Indiauapolis  &  St.  L.  R.  Co.  v.  Horst,  93  U.  S.  291;    Florida  Ry.  &  Nav. 
Co.  v.  Webster,  25  Fla.  394,  5  South.  714;    Olson  v.  Railroad  Co.,  45  Minn.  536, 
4S  X.  W.  445;    Orcutt  v.  Railroad  Co.,  45  Minn.  368,  47  N.  W.  1068;    Missouri 
Pac.  Ry.  Co.  v.  Ivy,  71  Tex.  409,  9  S.  W.  346;    New  York,  Q  &  St.  L.  R.  Co.  v. 
Blumeuthal,  160  111.  40,  43  X.  E.  809;    Omaha  &  R.  V.  Ry.  Co.  v.  Crow,  47 
Neb.  84,  66  N.  W.  121;    Saunders  v.  Southern  Pac.  Co.,  13  Utah,  275,  44  Pac. 
932;    Chicago  &  A.  R.  Co.  v.  Winters,  175  111.  293,  51  N.  E.  901;    St.  Louis    S. 
W.  Ry.  Co.  v.  Nelson  (Tex.  Civ.  App.)  44  S.  W.  179;    Louisville  &  N.  R.  Co.  v. 
Bell  (Ky.)  38  S.  W.  8;    Ft.  Scott,  W.  &  W.  Ry.  Co.  v.  Sparks,  55  Kan.  288,  39 
Pac.  1032. 

29  See  post,  p.  212.    Rogers  v.  Steamboat  Co.,  86  Me.  261,  29  Atl.  1069;   Mul- 
doon  v.  Railway  Co.,  10  Wash.  311,  38  Pac.  995. 

so  West  Chester  &  P.  R.  Co.  v.  Miles,  55  Pa.  St.  209;  Sanford  v.  Railroad 
Co.,  2  Phila.  (Pa.)  107;  Day  v.  Owen,  5  Mich.  520;  Hollister  v.  Nowlen,  19 
Wend.  (N.  Y.)  234;  Hannibal  R.  R.  v.  Swift,  12  Wall.  262;  Saltonstall  v. 
Stockton,  Taney,  11,  Fed.  Cas.  No.  12,271;  Indianapolis,  P.  &  C.  Ry.  Co.  v. 
Rinard,  46  Ind.  293;  Lake  Erie  &  W.  R.  Co.  v.  Acres,  108  Ind.  548,  9  N.  E, 


192  COMMON    CARRIER    OF    PASSENGERS.  (Cll.   5 

they  must  carry  every  person  who  is  not  positively  dangerous  or  ob- 
noxious to  other  passengers,  but  merely  that  carriers  cannot  consult 
personal  prejudice  or  exercise  nice  discrimination  in  determining 
whom  they  will  transport.  They  need  not  carry  persons  having  con- 
tagious diseases,31  nor  those  who  are  intoxicated  and  disorderly.32 
Neither  are  they  obligated  to  carry  criminals,  or  those  going  upon 
the  train  with  the  intent  of  committing  an  assault  on  a  passenger. 
The  would-be  passenger  must  be  free  from  unlawful  intent,  and  the 
carrier  is  not  bound  to  accept  persons  who  intend  using  the  trains  for 
gambling  purposes.33  Likewise,  if  the  presence  of  a  person  on  a 
train  or  his  arrival  at  the  proposed  destination  would  probably  be 
productive  of  violence  or  disorder,  he  may  be  refused  passage.34 

Peddlers,  Book  Agents,  Etc. 

In  the  absence  of  specific  contract,  a  passenger  has  no  right  to 
use  the  vehicles  of  the  carrier  for  purposes  of  traffic,  and  the  car- 
rier may  properly  refuse  to  admit  to  its  trains  or  vehicles  those  in- 
tending to  come  aboard  for  that  purpose,35  or  may  eject  those  who, 
being  on  the  train  or  boat,  engage  in  such  traffic  contrary  to  the 
regulations.36 

453;  Mershon  v.  Hobensack,  22  N.  J.  Law,  372;  Baltimore  &  0.  R.  Co.  \. 
Carr,  71  Md.  135,  17  Atl.  1052. 

si  Tburston  v.  Railroad  Co.,  4  Dill.  321,  Fed.  Cas.  Xo.  14,019.  Rule  as  to 
blind  men:  Zachery  v.  Railroad  Co.,  74  Miss.  520,  21  South.  246;  Id.,  75  Miss. 
746,  23  South.  434. 

82  Putnam  v.  Railroad  Co.,  55  X.  Y.  108;  Pittsburgh  &  C.  R.  Co.  v.  Pillow, 
76  Pa.  St.  510;  but  not  slight  intoxication,  Pittsburgh,  O.  &  St.  L.  R.  Co.  v. 
Vandyne,  57  Ind.  576;  Milliman  v.  Railroad  Co.,  66  N.  Y.  642;  Vinton  v. 
Railroad  Co.,  11  Allen  (Mass.)  304;  Pittsburgh,  Ft.  W.  &  C.  Ry.  Co.  v.  Hinds, 
53  Pa.  St.  512;  Flint  v.  Transportation  Co.,  34  Conn.  554;  Freedon  v.  Rail- 
road Co.,  24  App.  Div.  306,  48  N.  Y.  Supp.  584. 

33  Thurston  v.  Railroad  Co.,  4  Dill.  321,  Fed.  Cas.  Xo.  14,019;  Galveston,  H. 
&  S.  A.  Ry.  Co.  v.  McMonigal  (Tex.  Civ.  App.)  25  S.  W.  341. 

s*  Pearson  v.  Duane,  4  Wall.  605.  But  see,  as  to  a  prostitute,  Brown  v. 
Railroad  Co.,  7  Fed.  51. 

sis  Jencks  v.  Coleman,  2  Suinn.  221,  Fed.  Cas.  Xo.  7,258;  Com.  v.  Power,  7 
Mete.  (Mass.)  596;  Xew  Jersey  Steam  Xav.  Co.  v.  Merchants'  Bank  of  Bos- 
ton, 6  How.  343;  The  D.  R.  Martin,  11  Blatchf.  233,  Fed.  Cas.  Xo.  1,030;  Bar- 
ney v.  Steamboat  Co.,  67  N.  Y.  301;  Smallinan  v.  Whilter,  87  111.  545. 

ae  The  D.  R.  Martin,  11  Blatchf.  233,  Fed.  Cas.  Xo.  1,030. 


§    74)  PREPAYMENT    OF    FARE.  193 

Limited  Accommodations. 

When  the  accommodations  of  the  carrier  are  limited,  he  is  not 
bound  to  receive  passengers  after  the  room  is  exhausted.37  But  if, 
having  sold  a  person  a  ticket,  the  carrier  is  unable  or  fails  to  fur- 
nish him  with  suitable  accommodations,  he  is  liable  for  breach  of 
contract.38 

SAME— PREPAYMENT  OF  FARE. 

74.  The  prepayment  of  fare  may  be  demanded,  as  a  con- 
dition precedent  to  accepting  a  person  as  a  passen- 
ger. 

As  it  is  the  business  of  the  carrier  to  transport  for  hire,  he  is 
bound  to  carry  only  those  who  are  able  and  willing  to  pay  the  fare, 
and  prepayment  may  be  demanded,  as  a  condition  precedent  to  ac- 
cepting a  person  as  a  passenger.1  But,  in  order  that  the  passenger 
may  be  rightfully  on  the  train  for  transportation,  it  is  not  neces- 
sary that  he  should  have  paid  his  fare  before  entering,  or  bought  his 
ticket.2  It  is  sufficient  if  he  intends  paying  his  fare  when  demand- 

37  Chicago  &  X.  W.  R.  Oo.  v.  Carroll,  5  111.  App.  201;  Evansville  &  C.  R.  Co. 
v.  Duncan,  28  Ind.  441. 

ss  The  Pacific,  1  Blatchf.  569,  Fed.  Cas.  No.  10,643;  Evansville  &  C.  R.  Co. 
v.  Duncan,  28  lad.  441;  Alabama  &  V.  Ry.  Co.  v.  Drummond,  73  Miss.  813, 
20  South.  7;  Hawcroft  v.  Railway  Co.,  8  Eng.  Law  &  Eq.  362.  A  carrier  is 
bound  to  furnish  seats  for  passengers,  and,  on  his  failure  to  do  so,  the  pas- 
senger may  refuse  to  surrender  his  ticket  and  leave  the  train,  but  cannot  insist 
on  being  carried  if  he  retains  his  ticket.  Hardenbergh  v.  Railway  Co.,  39  Minn. 
3,  38  X.  W.  625;  Memphis  &  C.  R.  Co.  v.  Benson,  85  Tenn.  627,  4  S.  W.  5; 
Davis  v.  Railroad  Co.,  53  Mo.  317;  St.  Louis,  I.  M.  &  S.  Ry.  Oo.  v.  Leigh,  45 
Ark.  368;  Louisville,  X.  O.  &  T.  Ry.  Co.  v.  Patterson,  69  Miss.  421,  13  South. 
607. 

§  74.  iDay  v.  Owen,  5  Mich.  520;  Tarbell  v.  Railroad  Co.,  34  Cal.  616; 
Nashville  &  C.  R.  Co.  v.  Messino,  1  Sneed  (Tenn.)  220;  McCook  v.  Xorthup 
(Ark.)  45  S.  W.  547;  Ker  v.  Mountain,  1  Esp.  27.  A  strict  tender  of  fare  is 
not  necessary.  Day  v.  Owen,  supra;  Pickford  v.  Railway  Co.,  8  Mees.  &  W. 
372. 

2  Cleveland  v.  Steamboat  Co.,  68  N.  Y.  306;  Carpenter  v.  Railroad  Co.,  97 
X.  Y.  494;  Ellsworth  v.  Railway  Co.  (Iowa)  63  X.  W.  584;  Houston  &  T.  C. 
R.  Co.  v.  Washington  (Tex.  Civ.  App.)  30  S.  W.  719;  Cross  v.  Railway  Co., 
56  Mo.  App.  664;  Missouri,  K.  &  T.  Ry.  Co.  v.  Simmons,  12  Tex.  Civ.  App. 
500,  33  S.  W.  1096. 
BAR.XEG.— 13 


194  COMMON    CARRIER    OF    PASSENGERS.  (Cll.    5 

ed,  and  is  guilty  of  no  deceit  which  prevents  such  demand  being 
made; 3  and  this  is  true  even  when  the  rules  of  the  carrier  require 
that  tickets  shall  be  bought  before  entering  the  train,  by  persons 
intending  to  take  passage.4 

When  the  carrier  is  in  possession  of  knowledge  which  would  war- 
rant him  in  refusing  to  accept  a  person  as  a  passenger,  he  should 
make  his  election,  either  to  receive  or  refuse  him,  at  the  earliest  pos- 
sible moment.  If,  being  in  possession  of  such  knowledge,  he  sells 
him  a  ticket,  he  cannot  thereafter  refuse  him  transportation.5  If 
a  ticket  is  inadvertently  sold  to  such  a  person,  the  contract  of  car- 
riage cannot,  in  any  event,  be  rescinded  without  a  repayment  of  the 
fare.8 

SAME— CLASSIFICATION  OF  PASSENGERS. 

75.  A  common  carrier  is  bound  to  furnish  equal  accom- 
modations to  similar  persons  paying  the  same  fare, 
but  the  charge  may  properly  be  graduated  accord- 
ing to  the  service,  and  such  regulations  may  be 
made  and  enforced  as  reasonably  tend  to  the  com- 
fort and  convenience  of  passengers  generally. 

While  the  carrier  is  obligated  to  accept  for  transportation  all  suit- 
able persons  who  apply  in  the  customary  way,  he  may  very  properly 
regulate  the  character  of  the  accommodations  in  accordance  wyith  a 
fixed  scale  of  prices.1  Such  an  arrangement  is  in  entire  accord  with 
well-settled  business  principles,  and  adds  to  the  comfort  and  conven- 
ience of  all  classes  of  travelers.2  And  it  is  not  only  reasonable,  but 
eminently  desirable,  that  proper  provision  be  made  for  the  comfort 

s  Columbus,  C.  &  I.  C.  Ry.  Co.  v.  Powell,  40  Ind.  37.  Per  contra,  see  Gard- 
ner v.  Northampton  Co.,  51  Conn.  143. 

*  Doran  v.  Ferry  Co.,  3  Lans.  (N.  Y.)  105. 

e  Hannibal  R.  Co.  v.  Swift,  12  Wall.  262;  Pearson  v.  Dnane,  4  Wall.  605; 
Tarbell  v.  Railroad  Co.,  34  Cal.  616.  But  see  Com.  v.  Power,  7  Mete.  (Mass.) 
596;  The  D.  R.  Martin,  11  Blatchf.  233,  Fed.  Gas.  No.  4,092. 

e  Thurston  v.  Railroad  Co.,  4  Dill.  321,  Fed.  Cas.  No.  14,019. 

§  75.  i  Wright  v.  Railway  Co.,  78  Cal.  300,  20  Pac.  740;  St.  Louis,  A.  &  T. 
Ry.  Co.  v.  Hardy,  55  Ark.  134,  17  S.  W.  711;  Nolan  v.  Railroad  Co.,  41  N.  Y. 
Super.  Ct.  541;  Alabama  &  V.  Ry.  Co.  v.  Drummond,  73  Miss.  S13,  20  South.  7. 

2  Day  v.  Owen,  5  Mich.  520;    Westchester  &  P.  R.  Co.  v.  Miles,  55  Pa.  St.  209. 


§    75)  CLASSIFICATION    OF    PASSENGERS.  195 

and  protection  of  women  by  affording  them  separate  compartments, 
where  they  may  be  free  from  contact  with,  and  annoyance  by,  the 
male  passengers.3  It  follows,  of  course,  that,  if  the  carrier  maj 
make  such  regulations,  he  has  the  authority  and  the  right  to  have 
them  enforced.  But  all  such  classification  must  be  reasonable,  and 
dictated  not  by  whim  or  prejudice,  but  by  sound  and  judicious  pol- 
icy.* And  while  the  carrier  may  not  unjustly,  or  from  mere  caprice, 
discriminate  between  passengers  on  account  of  color,  race,  social 
position,  or  religious  belief,5  he  may  provide  separate  apartments  for 
white  and  colored  passengers,  provided  they  are  substantially  alike, 
and  comfortable.6 

Trespassers  not  Passengers. 

To  entitle  a  person  to  recover  for  injuries  inflicted  during  trans- 
portation by  the  negligence  of  the  carrier,  it  is  essential  that  he  be 
rightfully  on  the  train  or  vehicle,  otherwise  he  is  a  trespasser  to 
whom  the  carrier  owes  no  duty  except  to  abstain  from  willful  in- 
jury.7 And  a  person  who  attempts  to  defraud  the  carrier  by  the  use 

s  Peck  v.  Railroad  Co.,  70  N.  Y.  587;  Memphis  &  C.  R.  Co.  v.  Benson,  85 
Tenn.  627,  4  S.  W.  5;  Chicago  &  X.  W.  R.  Co.  v.  Williams,  55  111.  185;  Bass  v. 
rtailroad  Co.,  36  Wis.  450.  39  Wis.  630,  and  42  Wis.  654;  Brown  v.  Railroad 
Co.,  7  Fed.  51.  And  see  Marquette  v.  Railroad  Co.,  3a  Iowa,  562,  Sufficient 
accommodations  for  other  passengers  must  be  provided  elsewhere.  Bass  v. 
Railroad  Co.,  supra. 

*  Coger  v.  Packet  Co.,  37  Iowa,  145;  Central  R.  Co.  v.  Green,  86  Pa.  St.  427; 
>\'estchester  &  P.  R.  Co.  v.  Miles,  55  Pa.  St.  209;  Chicago  &  N.  W.  R.  Co.  v. 
Williams,  55  111.  185.  But  see  Goines  v.  McCandless,  4  Phila.  (Pa.)  255. 

e  Coger  v.  Packet  Co.,  37  Iowa,  145;  Central  R.  Co.  v.  Green,  86  Pa.  St. 
427;  Westchester  &  P.  R.  Co.  v.  Miles.  55  Pa.  St  209. 

s  Chicago  &  X.  W.  R.  Co.  v.  Williams,  55  111.  185;  Houck  v.  Railway  Co., 
38  Fed.  226;  The  Sue,  22  Fed.  843;  Logwood  v.  Railroad  Co.,  23  Fed.  318; 
Murphy  v.  Railroad  Co.,  Id.  637;  Anderson  v/ Railroad  Co.,  62  Fed.  46.  And 
see  Gray  v.  Railroad  Co.,  11  Fed.  683;  Louisville  &  X.  R.  Co.  v.  Com.,  99  Ky. 
663,  37  S.  W.  79;  Ohio  Valley  Railway's  Receiver  v.  Lander  (Ky.)  47  S.  W. 
344,  48  S.  W.  145;  Plessy  v.  Ferguson,  163  U.  S.  537,  16  Sup.  Ct  1138.  But 
see,  also,  Railroad  Co.  v.  Brown,  17  Wall.  445. 

T  Gardner  v.  Xorthampton  Co.,  51  Conn.  143;  Hendryx  v.  Railroad  Co.,  45 
Kan.  377,  25  Pac.  893;  Toledo,  W.  &  W.  Ry.  Co.  v.  Brooks,  81  111.  245;  Chi- 
cago &  A.  R.  Co.  v.  Michie,  83  111.  427;  Chicago,  B.  &  Q.  R.  Co.  v.  Mehlsack, 
131  111.  61,  22  X.  E.  812;  Bricker  v.  Railroad  Co.,  132  Pa.  St.  1,  18  Atl.  9S3; 
Haase  v.  Xavigation  Co.,  19  Or.  354,  24  Pac.  238;  Condran  v.  Railway  Co., 
14  C.  C.  A.  506,  67  Fed.  522;  Union  Pac.  Ry.  Co.  v.  Xichols,  8  Kan.  505;  Wa- 


196  COMMON    CARRIER   OF    PASSENGERS.  (Ch.   5 

of  a  false  ticket,8  or  a  similar  deceit,9  is  a  trespasser;  and  the  fraud- 
ulent use  of  a  ticket  or  pass  issued  to  another  person  deprives  the 
user  of  the  rights  of  a  passenger.10 
Rules  and  Regulations. 

It  is  not  only  the  right,  but  the  duty,  of  the  carrier  to  make  and 
enforce  reasonable  rules  and  regulations  to  insure  the  safety,  or- 
derly conduct,  and  the  comfort  and  convenience  of  its  patrons.11 
To  this  end  the  following  regulations  have  been  held  reasonable. 
Forbidding  passengers  on  railroad  trains  to  ride  upon  the  platforms, 
baggage  cars,  or  engines;12  prohibiting  the  carriage  of  passengers 
on  freight  trains; 13  to  quell  disturbances,  to  preserve  order  and  de- 
corum, and  hence  to  use  sound  discretion  in  ejecting  from  its  vehicles 
all  persons  whose  conduct  is  such  as  to  render  acts  of  indecency, 

bash  R.  Co.  v.  Kingsley,  177  111.  558,  52  N.  E.  931;    Texas  &  N.  O.  R.  Co.  v. 
Demilley  (Tex.  Civ.  App.)  41  S.  W.  147. 

s  Toledo,  W.  &  W.  Ry.  Co.  v.  Beggs.  85  111.  80;  Lillis  v.  Railway  Co.,  64 
Mo.  464;  Brown  v.  Railway  Co.,  Id.  536.  And  see  Robertson  v.  Railroad  Co.. 
22  Barb.  (N.  Y.)  91;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Campbell,  76  Tex.  174,  13 
S.  W.  19;  McVeety  v.  Railway  Co.,  45  Minn.  268,  47  X.  W.  809;  Toledo,  W. 

6  W.  Ry.  Co.  v.  Brooks,  81  111.  245;    Great  Northern  Ry.  Co.  v.  Harrison,  10 
Exch.  376. 

9  Union  Pac.  Ry.  Co.  v.  Nichols,  8  Kan.  505.    And  see  Higgins  v.  Railroad 
Co.,  36  Mo.  418;    Trezona  v.  Railway  Co.  (Iowa)  77  N.  W.  486;    McGhee  v. 
Reynolds  (Ala.)  23  South.  68;    Illinois  Cent.  R.  Co.  v.  Marlett,  75  Miss.  956,  23 
South.  583. 

10  Toledo,  W.  &  W.  Ry.  Co.  v.  Beggs,  85  111.  80;    Way  v.  Railway  Co.,  G4. 
Iowa,  48,  19  N.  W.  828. 

11  Day  v.  Owen,  5  Mich.  520;    Chicago  &  N.  W.  R.  Co.  v.  Williams,  55  111. 
1S5;    Hoffbauer  v.  Railroad  Co.,  52  Iowa,  342,  3  »X.  W.  121;    State  v.  Chovin, 

7  Iowa,  204;   Hibbard  v.  Railroad  Co.,  15  N.  Y.  455;    Vedder  v.  Fellows,  20 
N.  Y.  126;    Pennsylvania  R.  Co.  v.  Langdon,  92  Pa.  St.  21;    Du  Laurans  v. 
Railroad  Co.,  15  Minn.  49  (GiK  29);    Gleason  v.  Transportation  Co.,  32  Wis. 
85;    Bass  v.  Railroad  Co.,  36  Wis.  450;    State  v.  Overton,  24  N.  J.  Law,  435; 
Brown  v.  Railroad  Co.,  4  Fed.  37,  7  Fed.  51;    Ft.  Scott,  W.  &  W.  Ry.  Co.  v. 
Sparks,  55  Kan.  288,  39  Pac.  1032.     Reasonableness  of  rule  requiring  station 
to  be  kept  open  during  certain  hours.     Louisville,  X.  A.  &  O.  Ry.  v.  Wright, 
18  Ind.  App.  125,  47  N.  E.  491. 

12  O'Donnell  v.  Railroad  Co.,  59  Pa.  St.  239;    Houston  &  T.   C.  R.  Co.  v. 
Onernmons,  55  Tex.  88;    McMillan  v.  Railway  Co.,  172  Pa.  St.  523,  33  Atl.  560; 
Montgomery  v.  Railway  Co.,  24  App.  Div.  454,  48  N.  Y.  Supp.  849. 

is  See  ante,  p.  1S7;  Galaviz  v.  Railroad  Co.  (Tex.  Civ.  App.)  38  S.  W.  234; 
Houb.cn,  E.  &  W.  T.  Ry.  Co.  v.  Norris  (Tex.  Civ.  App.)  41  S.  W.  708. 


§    77)  THE    TICKET    AS    EVIDENCE.  197 

rudeness,  or  disturbance,  either  inevitable  or  probable.14  And  the 
duty  of  anticipating  and  preventing  danger,  disorder,-  and  discom- 
fort among  its  passengers  is  just  as  important  as  that  of  quelling 
any  of  these  elements  after  they  have  actually  begun.15  But  the 
carrier  may  not  make  foolish  or  unreasonable  rules, — as  forbidding 
passengers  to  pass  from  one  car  to  another,  or  to  change  their 
seats.16 

THE  CONTRACT. 

76.  The  contract  of  a  public  carrier  of  passengers  •will  be 

discussed  under  the  following  heads: 

(a)  The  ticket  as  evidence. 

(b)  Compensation. 

(c)  Liability  to  passengers. 

(d)  Limitations  of  liability. 

SAME— THE  TICKET  AS  EVIDENCE. 

77.  The    prepayment   of   fare   is   a  proper  condition  pre- 

cedent to  accepting  a  person  for  transportation,  and 
the  carrier  may  further  require  the  purchase  and 
presentation  of  a  ticket  before  the  passenger  enters 
the  vehicle. 

The  carrier  may  properly  require  the  purchase  and  presentation 
of  tickets  before  entering  the  car  or  other  vehicle.1  The  ticket  is  a 
receipt  for  the  payment  of  fare  to  the  point  designated  thereon,  and 
is  merely  evidence  of  the  contract  of  carriage.2  Its  terms  may  be 

i*  Vinton  v.  Railroad  Co.,  11  Allen  (Mass.)  304;  Sullivan  v.  Railroad  Co., 
14S  Mass.  119,  IS  X.  E.  G78;  Baltimore,  P.  &  C.  R.  Co.  v.  McDonald,  68  Ind. 
316:  Peavy  v.  Railroad  Co.,  SI  Ga.  485,  8  S.  E.  70;  Chicago  City  Ry.  Co.  v. 
Pelletier.  134  111.  120,  24  X.  E.  770;  Robinson  v.  Railway  Co.,  87  Me.  387, 
32  Atl.  994. 

1 5  Vinton  v.  Railroad  Co.,  11  Allen  (Mass.)  304.  But  see  Putnam  v.  Rail- 
road Co.,  55  N.  Y.  10S. 

1  s  state  v.  Overton,  24  N.  J.  Law,  435,  441.     And  see  South  Florida  R.  Co. 
v.  Rhodes,  25  Fla.  40,  5  South.  633.     Reasonableness  a  question  for  court. 
Gregory  v.  Railway  Co.,  100  Iowa,  345,  69  X.  W.  532. 

§§  76-77.     i  Cleveland.  C.  &  C.  R.  Co.  v.  Bartram.  11  Ohio  St.  457. 

2  Rawson  v.  Railroad  Co.,  48  X.  Y.  212;    Quimby  v.  Vanderbilt,  17  N.  Y. 


198  COMMON    CARRIER    OF    PASSENGERS.  (Ch.    5 

varied  by  parol  evidence.3  As  between  the  conductor  and  passen- 
ger, however,  and  the  right  of  the  latter  to  travel,  the  ticket  pro- 
duced must  be  conclusive  evidence ;  and  the  passenger  must  produce 
it  when  called  upon  as  the  evidence  of  his  right  to  the  seat  he 
claims.4  This  ruling  is  based  on  experience  and  necessity,  but  does 
not  conclude  the  passenger  in  his  right  to  recover  under  the  actual 
contract,  if  the  latter  is  inconsistent  with  that  expressed  in  the 
ticket.5  Thus,  if  the  passenger  has  paid  his  fare  to  a  point  beyond 
that  called  for  by  the  ticket,  and  was  compelled  to  pay  a  second  time 
for  the  additional  distance,  the  excess  could  be  recovered  in  a  suit- 
able action.6 

306;  .Boice  v.  Railroad  Co.,  61  Barb.  (N.  Y.)  611;  Barker  v.  Coflin,  31  Barb. 
<N.  Y.)  556;  Elmore  v.  Sands,  54  N.  Y.  512;  Johnson  v.  Railroad  Corp.,  46 
N.  H.  213;  Gordon  v.  Railroad  Co.,  52  N.  H.  596;  State  v.  Overton,  24  N.  J. 
Law,  435;  Nevins  v.  Steamboat  Co.,  4  Bosw.  (N.  Y.)  225;  Scott  v.  Railway 
Co.,  144  Ind.  125,  43  N.  E.  133;  Henderson  r.  Stevenson,  L.  R.  2  H.  L.  Sc.  470. 

s  Van  Buskirk  v.  Roberts,  31  N.  Y.  661;  Northern  R.  Co.  v.  Page,  22  Barb. 
<N.  Y.)  130;  Barker  v.  Coflin,  31  Barb.  (N.  Y.)  556;  Nevins  v.  Steamboat  Co., 
4  Bosw.  (N.  Y.)  225;  Rawson  v.  Railroad  Co.,  48  N.  Y.  212;  Elmore  v.  Sands, 
54  N.  Y.  512;  BroAvn  v.  Railroad  Co.,  11  Cnsh.  (Mass.)  97;  Johnson  v.  Rail- 
road Corp.,  46  N.  H.  213;  Crosby  v.  Railroad  Co.,  69  Me.  418;  Burnham  v. 
Railway  Co.,  63  Me.  298.  But  see  Hufford  v.  Railway  Co.,  53  Mich.  118,  18 
N.  W.  580. 

4  Mosher  v.  Railway  Co.,  23  Fed.  326;  Hall  v.  Railroad  Co.,  15  Fed.  57; 
Petrie  v.  Railroad  Co.,  42  N.  J.  Law,  449;  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Gants,  38  Kan.  608,  17  Pac.  54;  McKay  v.  Railway  Co.,  34  W.  Va.  65,  11  S.  E. 
737;  Rose  v.  Railroad  Co.,  106  N.  C.  168,  11  S.  E.  526;  Bradshaw  v.  Railroad 
Co.,  135  Mass.  407;  Hufford  v.  Railway  Co.,  53  Mich.  118,  18  N.  W.  580; 
Townsend  v.  Railroad  Co.,  56  .N.  Y.  295;  Chicago,  B.  &  Q.  R.  Co.  v.  Griffin, 
€8  111.  499;  McClure  v.  Railroad  Co.,  34  Md.  532;  Shelton  v.  Railroad  Co.,  29 
Ohio  St.  214;  Yorton  v.  Railway  Co.,  54  Wis.  234,  11  N.  W.  482. 

s  Murdock  v.  Railroad  Co.,  137  Mass.  293;  Muckle  v.  Railway  Co.,  79  Hun, 
32,  29  N.  Y.  Supp.  732;  Townsend  v.  Railroad  Co.,  56  N.  Y.  295;  Elliott  v. 
Railroad  Co.,  53  Hun,  78,  6  N.  Y.  Supp.  363;  Frederick  v.  Railroad  Co.,  37 
Mich.  342;  Lake  Erie  &  W.  Ry.  Co.  v.  Fix,  88  Ind.  381;  Pennsylvania  Co.  v. 
Bray,  125  Ind.  229,  25  N.  E.  439;  Pittsburgh,  C.,  C.  &  St.  L.  Ry.  Co.  v. 
Berryman,  11  Ind.  App.  640,  36  N.  E.  728;  St.  Louis,  A.  &  T.  Ry.  Co.  v. 
Mackie,  71  Tex.  491,  9  S.  W.  451;  Appleby  v.  Railway  Co.,  54  Minn.  169,  55 
N.  W.  1117.  But  see  Bradshaw  v.  Railroad  Co.,  135  Mass.  407. 

e  Frederick  v.  Railroad  Co.,  37  Mich.  342.  In  this  case  the  plaintiff  was  not 
allowed  to  recover  against  the  company,  as  the  action  was  not  properly 
Drought.  In  delivering  the  opinion  of  the  court,  Marston,  J.,  said:  "Where 


§    77)  THE    TICKET    AS    EVIDEJCCE.  199 

Provisions  in  the  ticket  to  the  following  effect  are  binding  on  the 
passenger:  That  the  ticket  is  not  assignable; 7  that  coupons  are  not 
good  if  detached; 8  that  the  ticket  must  be  stamped  for  the  return 
trip; 9  that  it  is  good  on  certain  trains  only; 10  that  the  ticket  must 
be  used  within  a  limited  time  lx.  (but  it  is  sufficient  if  the  journey  is 

a  passenger  has  purchased  a  ticket,  and  the  conductor  does  not  carry  him  ac- 
cording to  its  terms,  or  if  the  company,  through  the  mistake  of  its  agent,  has 
given  him  the  wrong  ticket,  so  that  he  has  been  compelled  to  relinquish  his 
seat,  or  pay  his  fare  a  second  time  in  order  to  retain  it,  he  would  have  a  rem- 
edy against  the  company  for  a  breach  of  the  contract;  but  he  would  have  to 
adopt  a  declaration  differing  essentially  from  the  one  resorted  to  in  this  case." 
See,  also,  Hufford  v.  Railway  Co.,  53  Mich.  118.  18  N.  W.  580. 

-  Way  v.  Railway  Co.,  04  Iowa,  48,  19  N.  W.  828;  Post  v.  Railroad  Co.,  14 
Neb.  110,  15  N.  W.  225;  Walker  v.  Railway  Co.,  15  Mo.  App.  333;  Drummond 
v.  Southern  Pac.  Co.,  7  Utah,  118,  25  Pac.  733;  Levinsou  v.  Railway  Co. 
(Tex.  Civ.  App.)  43  S.  W.  1032;  Rahilly  v.  Railway  Co.,  06  Minn.  153,  OS  N. 
W.  853;  Spencer  v.  Love  joy,  96  Ga.  657,  23  S.  E.  836. 

s  Boston  &  M.  R.  Co.  v.  Chipman,  140  Mass.  107,  14  N.  E.  940;  Norfolk  & 
W.  R.  Co.  v.  Wysor,  82  Ya.  250;  Louisville,  N.  &  G.  S.  R.  Co.  v.  Harris,  9 
Lea  (Tenn.)  ISO;  Houston  &  T.  C.  R.  Co.  v.  Ford,  53  Tex.  364.  But  see, 
where  coupons  are  detached  by  mistake,  Wightman  v.  Railway  Co.,  73  Wis. 
169.  40  N.  W.  089.  And  compare  Chicago,  St.  L.  &  P.  R.  Co.  v.  Holdridge,  118 
Ind.  281,  20  N.  E.  837;  Rouser  v.  Railway  Co.,  97  Mich.  505,  56  N.  W.  937; 
Thompson  v.  Truesdale,  61  Minn.  129,  63  N.  W.  259. 

o  Mosher  v.  Railway  Co.,  127  TJ.  S.  390,  8  Sup.  Ct.  1324;  Boylan  v.  Rail- 
road Co.,  132  U.  S.  146,  10  Sup.  Ct.  50;  Edwards  v.  Railway  Co.,  81  Mich. 
364,  45  N.  W.  827;  Bowers  v.  Railroad  Co.,  158  Pa,  St.  302,  27  Atl.  893; 
Central  Trust  Co.  v.  Railway  Co.,  65  Fed.  332;  Southern  Ry.  Co.  v.  Barlow, 
104  Ga.  213.  30  S.  E.  732;  Houston  &  T.  C.  Ry.  Co.  v.  Arey  (Tex.  Civ.  App.) 
44  S.  W.  894. 

10  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Rosenzweig,  113  Pa.  St  519,  6  Atl.  545; 
Thorp  v.  Railroad  Co.,  61  Vt  378,  17  Atl.  791;    McRae  v.  Railroad  Co.,  88 
N.  C.  526. 

11  Hill  v.  Railroad  Co.,  63  N.  Y.  101;    Barker  v.   Coflin,  31  Barb.    (N.  Y.) 
556;    Boice  v.  Railroad  Co.,  01  Barb.  (N.  Y.)  Oil;    Wentz  v.  Railway  Co.,  3 
Hun  (N.  Y.)  241;   Boston  &  L.  R.  Co.  v.  Proctor,  1  Allen  (Mass.)  267;    State 
v.  Campbell,  32  N.  J.  Law,  309;    Pennington  v.   Railroad   Co.,   02  Md.   95; 
Lewis  v.  Railroad  Co.,  93  Ga.  225,  18  S.  E.  650;    Johnson  v.  Railroad  Corp., 
46  X.  H.  213;    Rawitzky  v.  Railroad  Co.,  40  La.  Ann.  47,  3  South.  387.     But 
the  limitation  must  be  reasonable  for  the  journey,  Texas  &  P.  Ry.  Co.  v.  Den- 
nis, 4  Tex.  Civ.  App.  90,  23  S.  W.  400;    by  statute,  Dryden  v.  Railway  Co.,  00 
Me.  512;   Boyd  v.  Spencer,  103  Ga.  828,  30  S.  E.  841;   Trezona  v.  Railway  Co. 
(Iowa)  77  N.  W.  486;   Illinois  Cent.  R.  Co.  v.  Marlett,  75  Miss.  950,  23  South. 


200  COMMON    CARRIER    OF    PASSENGERS.  (Ch.   5 

begun  within  the  time  limited;  it  need  not  be  finished  before  the 
time  has  expired; 12  and  if  there  is  no  limitation,  the  ticket  is  good 
at  any  time).13  In  the  absence  of  an  agreement,  the  passenger  can- 
not stop  at  an  intermediate  point,  and  afterwards  continue  to  his 
destination  on  the  same  ticket.14 

SAME— COMPENSATION. 

78.  The  carrier  is  entitled  to  charge  a  reasonable  com- 
pensation for  the  carriage  of  passengers,  and  may 
require  it  to  be  prepaid. 

A  reasonable  compensation  for  the  carriage  of  passengers  is  a 
proper  charge,1  but  it  must  be  uniform,  and  not  the  subject  of  un- 
reasonable discrimination  between  passengers.2  In  the  absence  of 
statute  3  it  is  regulated  by  custom.4  It  has  already  been  stated  that 

583;  Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v.  Murphy  (Tex.  Civ.  App.)  35  S.  W. 
GG;  Texas  &  N.  O.  R.  Co.  v.  Powell,  13  Tex.  Civ.  App.  212,  35  S.  W.  841. 

i2Auerbach  v.  Railroad  Co.,  88  N.  Y.  281;  Lundy  v.  Railroad  Co.,  66  Cal. 
191,  4  Pac.  1193;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Wright,  10  Tex.  Civ.  App.  179, 
30  S.  W.  294;  Evans  v.  Railway  Co.,  11  Mo.  App.  463;  Texas  &  P.  Ry.  Co^v. 
Dennis,  4  Tex.  Civ.  App.  90,  23  S.  W.  400. 

!3  Pennsylvania  R.  Co.  v.  Spicker,  105  Pa.  St.  142.  And  see  Dryden  v. 
Railway  Co.,  60  Me.  512;  Boyd  v.  Spencer,  103  Ga.  828,  30  S.  E.  841;  Louis- 
ville &  N.  R.  Co.  v.  Turner,  100  Tenn.  213,  47  S.  W.  223, 

i*  Hamilton  v.  Railroad  Co.,  51  N.  Y.  100;  Beebe  v.  Ay  res,  28  Barb.  (N.  Y.) 
275;  Terry  v.  Railroad  Co.,  13  Hun  (N.  Y.)  359;  Cheney  v.  Railroad  Co.,  11 
Mete.  (Mass.)  121;  Oil  Creek  &  A.  R.  Ry.  Co.  v.  Clark,  72  Pa.  St.  231;  Diet- 
rich v.  Railroad  Co.,  71  Pa.  St.  432;  Vankirk  v.  Railroad  Co.,  76  Pa.  St.  66; 
Wyman  v.  Railroad  Co.,  34  Minn.  210,  25  N.  W.  349;  Pennsylvania  R.  Co. 
v.  Parry,  55  N.  J.  Law,  551,  27  Atl.  914;  Cleveland,  C.  &  C.  R.  Co.  v.  Bar- 
tram,  11  Ohio  St.  457;  Drew  v.  Railroad  Co.,  51  Cal.  425;  Breen  v.  Railroad 
Co.,  50  Tex.  43;  Johnson  v.  Railroad  Co.,  63  Md.  106;  Roberts  v.  Koehler, 
30  Fed.  94;  Coombs  v.  Reg.,  26  Can.  Sup.  Ct.  13;  Robinson  v.  Southern  Pac. 
Co..  105  Cal.  526,  38  Pac.  94,  722. 

§  78.  i  Spofford  v.  Railroad  Co.,  128  Mass.  326;  McDuffee  v.  Railroad  Co.. 
52  N.  H.  430;  Johnson  v.  Railroad  Co.,  16  Fla,  623. 

2  Johnson  v.  Railroad  Co.,  16  Fla.  623;    Atwater  v.  Railroad  Co.,  48  N.  J. 
Law,  55,  2  Atl.  803;    Spofford  v.  Railroad  Co.,  128  Mass.  326.     And  see  Hale. 
Bailm.  &  Carr.  p.  335. 
-    s  Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  94  U.  S.  155;    Peik  v.  Railway  Co.,  94 


*  Spofford  v.  Railroad  Co.,  128  Mass.  326. 


§    79)  LIABILITY    TO    PASSENGERS.  201 

a  regulation  requiring  the  purchase  and  presentation  of  tickets  be- 
fore entering  the  cars  is  a  reasonable  one.  The  passenger  is  not 
obliged  to  tender  the  exact  amount  of  his  fare.  The  carrier  must 
furnish  change  in  a  reasonable  amount.5  Although  the  conductor 
may  require  the  surrender  of  the  ticket,6  he  must,  on  demand,  fur- 
nish a  check  or  other  evidence  of  payment.  Should  the  passenger 
lose  his  ticket,  he  is  entitled  to  a  reasonable  opportunity  to  find  it; 7 
but,  failing  to  do  so,  he  must  pay  again.8 

SAME— LIABILITY  TO  PASSENGERS. 

79.  The  carrier  of  passengers  is  bound  to  exercise  the 
highest  degree  of  care  possible  in  the  circumstances 
for  the  safety  of  the  passenger. 

D>  </ree  of  Care. 

While  the  public  carrier  of  passengers  is  not,  like  the  carrier  of 
goods,  an  insurer  of  their  safety,  yet  the  degree  of  care  demanded  of 

U.  S.  1G4;  Ruggles  v.  Illinois,  108  U.  S.  526,  2  Sup.  Ct.  832;  Stone  v.  Trust 
Co.,  116  U.  S.  307,  6  Sup.  Ct.  334,  388,  1191;  Dow  v.  Beidelman,  125  U.  S. 
GSO,  8  Sup.  Ct.  1028;  Chicago,  M.  &  St  P.  Ry.  Co.  v.  Minnesota,  134  U.  S. 
418,  10  Sup.  Ct.  462,  702;  Georgia  Railroad  &  Banking  Co.  v.  Smith,  128 
U.  S.  174,  9  Sup.  Ct.  47;  St.  Louis  &  S.  F.  Ry.  Co.  v.  Gill,  54  Ark.  101,  15 
S.  W.  18. 

s  Barrett  v.  Railway  Co.,  81  Cal.  296.  22  Pac.  859.  Cf.  Curtis  v.  Railway  Co., 
94  Ky.  573,  23  S.  W.  363;  Fulton  v.  Railway  Co.,  17  U.  C.  Q.  B.  428.  Tender 
of  $5  bill  for  5-ceut  fare  not  a  reasonable  tender.  Muldowney  v.  Traction 
Co.,  8  Pa.  Super.  Ct.  335,  43  Wkly.  Notes  Cas.  52;  Barker  v.  Railroad  Co.,  151 
X.  Y.  237.  45  X.  E.  5r.O. 

e  Illinois  Cent.  R.  Co.  v.  Whittemore,  43  111.  420;  Havens  v.  Railroad  Co., 
28  Conn.  69;  Northern  R.  Co.  v.  Page,  22  Barb.  (N.  Y.)  130;  Van  Dusan  v. 
Railway  Co.,  97  Mich.  439,  56  N.  W.  848.  But  the  carrier  cannot  take  up 
the  ticket  and  refuse  to  carry  the  passenger.  Yankirk  v.  Railroad  Co., 
76  Pa.  St.  66. 

"  Maples  v.  Railroad  Co.,  38  Conn.  557:  Knowles  v.  Railroad  Co.,  102  N.  C. 
59,  9  S.  E.  7;  International  &  G.  N.  R.  Co.  v.  Wilkes,  68  Tex.  617,  5  S.  W. 
491. 

s  Standish  v.  Steamship  Co.,  Ill  Mass.  512;  Cresson  v.  Railroad  Co.,  11 
Phila.  (Pa.)  597;  Crawford  v.  Railroad  Co.,  26  Ohio  St.  580;  Atwater  v. 
Railroad  Co.,  48  N.  .1.  Law,  55.  2  Atl.  803;  International  &  G.  N.  R.  Co.  v. 
Wilkes,  68  Tex.  617,  5  S.  W.  491.  But  see  Pullman  Palace-Car  Co.  v.  Reed, 
75  111.  125. 


202  COMMON    CARRIER    OF    PASSENGERS.  (Ch.  5 

him  is  so  great  that  it  falls  little  short  of  a  warranty.1  The  duty 
becomes  more  absolute  in  proportion  to  the  risk,  and  the  carrier 
must  exercise  as  much  care  and  diligence  as  an  expert  is  accustomed 
to  use.2  In  the  case  of  Christie  v.  Griggs,3  Mansfield,  C.  J.,  ex- 
presses the  extent  of  the  obligation  to  be  that,  "as  far  as  human  care 
and  foresight  could  go,  he  would  provide  for  their  safe  conveyance"; 
and  this  definition,  or  its  equivalent,  is  very  generally  in  use  to-day. 
But  in  using  this  definition  it  must  not  be  supposed  that  the  law  re- 
quires the  carrier  to  exercise  every  device  that  the  ingenuity  of  man 
can  conceive.  Such  an  interpretation  would  act  as  an  effectual  bar 
to  the  business  of  transporting  people  for  hire.  Thus,  in  operating 
trains,  the  carrier  is  not  required  to  use  iron  or  granite  cross-ties 
because  such  ties  are  less  liable  to  decay,  and  hence  safer,  than 
wood;  nor  upon  freight  trains  is  he  obliged  to  use  air  brakes,  beli 
pulls,  and  a  brakeman  upon  each  car.4  It  is  sufficient  if  the  car- 
rier omits  nothing  essential  or  conducive  to  the  safety  of  passengers 

§  79.  i  Indianapolis  &  St.  L.  R.  Co.  v.  Horst,  93  U.  S.  291;  Chicago  &  A.  R. 
Co.  v.  Byrum,  153  111.  131,  38  N.  E.  578;  Chicago,  P.  &  St.  L.  Ry.  Co.  v.  Lewis, 
145  111.  67,  33  N.  E.  960;  Spellman  v.  Rapid-Transit  Co.,  36  Neb.  890,  55  N.  W. 
270;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Higby  (Tex.  Civ.  App.)  26  S.  W.  737;  Doug- 
lass v.  Railway  Co.,  91  Iowa,  94,  58  N.  W.  1070;  Bischoff  v.  Railway  Co., 
121  Mo.  216,  25  S.  W.  908;  Wilson  v.  Railroad  Co.,  26  Minn.  278,  3  N.  W.  333; 
International  &  G.  N.  Ry.  Co.  v.  Welch,  86  Tex.  203,  24  S.  W.  391;  Taylor  v. 
Pennsylvania  Co.,  50  Fed.  755;  Jackson  v.  Railway  Co.,  118  Mo.  199,  24  S.  TV. 
192;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Stricklin  (Tex.  Civ.  App.)  27  S.  W.  1093; 
Dunn  v.  Railway  Co.,  58  Me.  187;  Houston,  E.  &  W.  T.  Ry.  Co.  v.  Richards 
(Tex.  Civ.  App.)  49  S.  W.  687;  Fitchburg  R.  Co.  v.  Nichols,  29  C.  C.  A.  500. 
85  Fed.  945;  Illinois  Cent.  R.  Co.  v.  Beebe,  174  111.  13,  50  N.  E.  1019;  Smedley 
v.  Railway  Co.,  184  Pa.  St.  620,  39  Atl.  544;  St.  Louis  S.  W.  Ry.  Co.  v.  Mc- 
Cullough  (Tex.  Civ.  App.)  45  S.  W.  324;  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v. 
Vivion  (Ky.)  41  S.  W.  580.  As  to  operation  of  horse-car  lines,  Noble  v.  Rail- 
way Co.,  98  Mich.  249,  57  N.  W.  126;  Watson  v.  Railway  Co.,  42  Miuu.  46, 
43  N.  W.  904;  Keegan  v.  Railroad  Co.,  34  App.  Div.  297,  54  N.  Y.  Supp.  391; 
Parker  v.  Railway  Co.,  69  Mo.  App.  54;  Stierle  v.  Railway  Co.,  156  N.  Y. 
70,  50  N.  E.  419;  Koehne  v.  Railway  Co.,  32  App.  Div.  419,  52  N.  Y.  Snpp. 
1088;  Brown  v.  Railway  Co.,  16  Wash.  465,  47  Pac.  890;  Bartnik  v.  Railroad 
Co.,  36  App.  Div.  246,  55  N.  Y.  Supp.  266. 

2  Whart.  Neg.  §§  627-637.     But  see  Carrico  v.  Railway  Co.,  35  W.  Va,  389, 
14  S.  E.  12. 

3  2  Camp.  79. 

*  Indianapolis  &  St  L.  R.  Co.  v.  Horst,  93  U.  S.  291. 


LIABILITY    TO    PASSENGERS.  203 

which  can  be  done  or  employed  consistently  with  the  most  approved 
methods  of  transacting  similar  business.5 

In  Pennsylvania  Co.  v.  Roy  6  the  court  said:  "He  [the  carrier]  is 
responsible  for  injuries  received  by  passengers  in  the  course  of  their 
transportation  which  might  have  been  avoided  or  guarded  against 
by  the  exercise  upon  his  part  of  extraordinary  vigilance,  aided  by 
the  highest  skill.  And  this  caution  and  vigilance  must  necessarily 
be  extended  to  all  agencies  or  means  employed  by  the  carrier  in  the 
transportation  of  the  passenger.  Among  the  duties  resting  upon 
him  is  the  important  one  of  providing  cars  or  vehicles  adequate — • 
that  is,  sufficiently  secure  as  to  strength  and  other  requisites — for 
the  safe  conveyance  of  passengers.  That  duty  the  law  enforces  with 
great  strictness.  For  the  slightest  negligence  or  fault  in  this  re- 
gard, from  which  injury  results  to  the  passenger,  the  carrier  is  liable 
in  damages." 

Latent  Defects. 

To  relieve  the  carrier  from  responsibility,  a  latent  defect  must  be 
such  only  as  no  reasonable  degree  of  skill  and  foresight  could  guard 
against.7  He  is  not  an  insurer,  and  therefore  is  not  liable  for  those 
defects  in  appliances  which  no  human  care  or  skill  could  either  have 
detected  or  prevented.8  A  seeming  limitation  upon  this  rule  as  to 
latent  defects  exists  in  attributing  the  negligence  of  the  manufactur- 
er to  the  carrier,  but  it  is  for  the  negligence  only  of  the  manufac- 
turer that  the  carrier  is  liable.  If  the  defect  in  manufacture  is  one 
which  could  not  have  been  discovered  or  avoided  by  known  tests  or 

5  Tuller  v.  Talbot,  23  111.  357;  Pittsburg,  C.  &  St.  L.  Ry.  Go.  v.  Thompson, 
56  111.  138;  Dunn  v.  Railway  Co.,  58  Me.  187;  Hegeman  v.  Railroad  Corp., 
13  X.  Y.  9;  Kansas  Pac.  Ry.  Co.  v.  Miller,  2  Colo.  442;  Pershing  v.  Railway 
Co.,  71  Iowa,  561,  32  X.  W.  488. 

e  102  U.  S.  451,  456. 

7  Ingalls  v.  Bills,  9  Mete.  (Mass.)  1;  Palmer  v.  Canal  Co.,  120  N.  Y.  170. 
24  X.  B.  302.  See,  also,  Frink  y.  Potter,  17  111.  406;  Galena  &  C.  U.  R.  Co. 
v.  Fay,  16  111.  558;  Sawyer  v.  Railroad  Co.,  37  Mo.  24;  Derwort  v.  Loonier. 
21  Conn.  245;  Mobile  &  O.  R.  Co.  v.  Thomas,  42  Ala.  672;  Anthony  v.  Rail- 
road Co.,  27  Fed.  724;  Carter  v.  Railway  Co.,  42  Fed.  37;  Frink  v.  Coe,  4  G. 
Greene  (Iowa)  555;  Western  Ry.  of  Alabama  v.  Walker,  113  Ala.  267,  22 
South.  182;  Texas  &  P.  Ry.  Co.  v.  Buckalew  (Tex.  Civ.  App.)  34  S.  W.  165. 

s  Ingalls  v.  Bills,  9  Mete.  (Mass.)  1;  Palmer  v.  Canal  Co.,  120  N.  Y.  170,  24 
X.  E.  302. 


204  COMMON    CARRIER    OF    PASSENGERS.  (Ch.   5 


methods,  either  in  use  or  process  of  manufacture,  no  liability 
attach  to  either  the  carrier  or  the  manufacturer;  but,  if  the  flaw  was 
discoverable  by  the  maker,  his  negligence  in  failing  to  detect  it  will 
be  attributed  to  the  carrier.9  Hence  it  is  now  universally  agreed 
that  the  duty  to  furnish  a  "roadworthy"  vehicle  is  not  absolute.10 

Unavoidable  Dangers. 

In  all  modes  of  conveyance,  whether  by  land  or  water,  by  elec- 
tricity or  steam,  there  are  certain  added  dangers  which  cannot  be 
entirely  guarded  against  or  overcome,  and  which  the  traveler  must 
assume.  ''We  are  surrounded  by  dangers  at  home  and  abroad,  and 
they  are  greater  when  we  travel  than  when  we  remain  stationary. 
In  some  modes  of  travel  these  dangers  are  greater  than  in  others. 
They  may  be  greater  on  water  than  on  land;  on  a  fast  line  of  stages 
than  on  a  slow  one.  And  every  passenger  must  make  up  his  mind 
to  meet  the  risks  incident  to  the  mode  of  travel  he  adopts  which 
cannot  be  avoided  by  the  utmost  degree  of  care  and  skill  in  the  prep- 
aration and  management  of  the  means  of  conveyance.  This  is  the 
only  guaranty  given  by  the  proprietor  of  the  line.11  Thus,  when  a 
steamboat  was  just  leaving  the  dock,  and  a  man  fell  overboard.  As 
the  cry  was  being  raised,  the  passengers  with  one  accord  rushed  to 
the  side  of  the  boat,  and  plaintiff  was  crowded  through  the  gangway, 
which  had  not  yet  been  closed,  and  fell  into  the  water.  It  was  held 
that  the  carrier  could  not  reasonably  anticipate  and  prevent  such 
an  accident.12 

sHegeman  v.  Railroad  Corp.,  13  X.  Y.  9;  Caldwell  v.  Steamboat  Co.,  47 
N.  Y.  282;  Carroll  v.  Railroad  Co.,  58  N.  Y.  126;  Curtis  v.  Railroad  Co.,  18 
X.  Y.  534,  538;  Perkins  v.  Railroad  Co.,  24  X.  Y.  196,  219;  Illinois  Cent.  R. 
Co.  v.  Phillips,  49  111.  234;  Bartnik  v.  Railroad  Co.,  3G  App.  Div.  246,  55  X.  Y. 
Supp.  266;  Arkansas  Midland  Ry.  Co.  v.  Griffith,  63  Ark.  491,  39  S.  W.  550: 
Houston,  E.  &  W.  T.  Ry.  Co.  v.  Xorris  (Tex.  Civ.  App.)  41  S.  W.  708;  Rich- 
mond Railway  &  Electric  Co.  v.  Bowles,  92  Va.  738,  24  S.  E.  388.  But  see 
Grand  Rapids  &  I.  R.  Co.  v.  Huntley.  38  Mich.  537. 

10  Readhead  v.  Railroad  Co.,  L.  R.  2  Q.  B.  412,  affirmed  in  L.  R.  4  Q.  B.  379; 
Carroll  v.  Railroad  Co.,  58  X.  Y.  126;    Witsell  v.  Railway  Co.,  120  X.  C.  557, 
27  S.  E.  125;    Christie  v.  Griggs,  2  Camp.  79. 

11  McKinney  v.  Xeil,  1  McLean,  540.  Fed.  Cas.  Xo.  8,865. 

12  Cleveland  v.  Steamboat  Co.,  68  X.  Y.  306,  89  N.  Y.  627,  and  125  N.  Y.  299, 
26  X.  E.  327;    Houston,  E.  &  W.  T.  Ry.  Co.  v.  Richards  (Tex.  Civ.  App.)  49  S. 
W.  687;    Denver  &  R.  G.  R.  Co.  v.  Andrews,  11  Colo.  App.  204,  53  Pac.  518. 


§    79)  LIABILITY    TO    PASSENGERS.  205 

Neither  will  the  carrier  be  liable  for  defective  conditions  which 
are  observable,  and  which  the  passenger  accepts  as  incident  to  that 
manner  of  transportation;  as  the  failure  to  place  a  chain  across  the 
rear  of  a  caboose  attached  to  a  freight  train,  and  which  was  not  pro- 
vided or  equipped  for  passengers.13 

Operation  of  Trains,  etc. 

The  carrier  is  bound  to  exercise  the  highest  degree  of  care,  in  view 
of  all  the  circumstances,  to  avoid  injury  to  passengers  in  the  oper- 
ation of  its  means  of  conveyance,  avoiding  a  dangerous  rate  of 
speed,14  sudden  starts  and  stops,15  or  danger  from  curves.16  It  is 
the  duty  of  the  carrier  to  properly  announce  stations,17  and  to  use 
due  care  with  reference  to  the  physical  and  mental  condition  of  an 
accepted  passenger.  Hence  the  carrier  must  take  care  of  one  who 
is  decrepit  or  otherwise  incapacitated,18  even  if  the  incapacity  arises 

is  Chicago,  B.  &  Q.  R.  Co.  v.  Hazzard,  26  111.  373.  See,  also,  San  Antonio 
&  A.  P.  Ry.  Co.  v.  Robinson,  79  Tex.  608,  15  S.  W.  584. 

i*  Andrews  v.  Railway  Co.,  86  Iowa,  677,  53  N.  W.  399;  Chicago,  P.  & 
St.  L.  Ry.  Co.  v.  Lewis,  145  111.  67,  33  N.  E.  960;  Pennsylvania  Co.  v.  New- 
meyer,  129  Ind.  401,  28  N.  E.  860;  Willmott  v.  Railway  Co.,  106  Mo.  535,  17 
S.  W.  490;  Mexican  Cent.  Ry.  Co.  v.  Lauricella,  87  Tex.  277,  28  S.  W.  277; 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Martin,  59  Kan.  437,  53  Pac.  461;  Schmidt  v. 
Railroad  Co.,  26  App.  Div.  391,  49  N.  Y.  Supp.  777. 

15  Holmes  v.  Traction  Co.,  153  Pa.  St.  152,  25  Atl.  640;    Yarnell  v.  Railway 
Co.,  113  Ma.  570,  21  S.  W.  1;    North  Chicago  St.  R.  Co.  v.  Cook,  145  111.  551, 
33  N.  E.  958;    Bowdle  v.  Railway  Co.,  103  Mich.  272,  61  N.  W.  529;    Poole  v. 
Railroad  Co.,  89  Ga.  320,  15  S.  E.  321;    Cassidy  v.  Railroad  Co.,  9  Misc.  Rep. 
275.  29  N.  Y.  Supp.  724;    Hill  v.  Railway  Co.,  158  Mass.  458,  33  N.  E.  582; 
Chicago  &  A.  R.  Co.  v.  Arnol,  144  111.  261,  33  N.  E.  204.    As  to  street  cars  when 
passengers  are  alighting:    Cawfleld  v.  Railway  Co.,  Ill  N.  C.  597,  16  S.  E.  703,- 
Chicago,  B.  &  Q.  R.  Co.  v.  Landauer,  36  Neb.  642,  54  X.  W.  976;    Robinson  v. 
Railway  Co.,  157  Mass.  224,  32  N.  E.  1;    Washington  &  G.  R.  Co.  v.  Harmon's 
Adm'r,  147  U.  S.  571,  13  Sup.  Ct.  557;    McCurrie  v.  Pacific  Co.,  122  Oil.  558,  55 
Pac.  324;  Pomeroy  v.  Railroad  Co.,  172  Mass.  92,  51  N.  E.  523;  Hassen  v.  Rail- 
road Co.,  34  App.  Div.  71,  53  N.  Y.  Supp.  1069. 

16  Lynn  v.  Southern  Pac.  Co.,  103  Cal.  7,  36  Pac.  1018;    Francisco  v.  Rail- 
road Co.,  78  Hun,  13,  29  N.  Y.  Supp.  247;    Brusch  v.  Railway  Co.,  52  Minn.  512, 
55  N.  W.  57. 

i"  Pennsylvania  Co.  v.  Hoagland,  78  Ind.  203;  Pennsylvania  R.  Co.  v.  As- 
pell,  23  Pa.  St.  147;  Chicago,  R.  I.  &  T.  Ry.  Co.  v.  Boyles,  11  Tex.  Civ.  App. 
522,  33  S.  W.  247. 

isWeightman  v.  Railway  Co.,  70  Miss.  563,  12  South.  586;  Meyer  v.  Rail- 
way Co.,  4  C.  C.  A.  221,  54  Fed.  116;  Sawyer  v.  Dulany,  30  Tex.  479;  Sheri- 


206  COMMON    CARRIER    OK    PASSENGERS.  (Ch.    5 

from  intoxication.13  In  the  case  of  railroads,  the  roadbed  and  tracks 
are  a  part  of  the  equipment,  and  in  their  construction  and  mainte- 
nance the  carrier  is  held  to  the  same  extraordinary  diligence  as  in 
the  management  of  trains.20  The  duty  of  careful  and  frequent  in- 
spection is  absolute.21 

Liability  for  Negligence  of  Connecting  Carrier. 

The  broad  basis  of  public  policy  on  which  the  liability  of  common 
carriers  of  passengers  has  been  established  requires  that  they  should 
be  held  responsible  for  the  negligence  of  any  of  the  agencies  which  they 
may  employ  in  the  conduct  of  their  business.  Agreeably  to  this  doc- 
trine, if  the  railway  carrier  transports  its  passengers  in  the  vehicles 
or  over  the  tracks  of  any  other  line,  it  assumes  and  is  responsible 
for  any  negligence  of  such  other  carrier  which  is  material  in  caus- 
ing injury  to  its  own  passengers.22  Nor  is  the  concurring  negli- 
gence of  any  third  party  a  defense  in  an  action  against  the  carrier, 
if  the  negligence  of  the  latter  in  any  degree  contributed  to  cause  the 
injury  complained  of.23  When  a  passenger  is  injured  by  the-  colli- 

dan  v.  Railroad  Co.,  36  N.  Y.  39;  Philadelphia  City  Pass.  Ry.  Co.  v.  Hassard, 
75  Pa.  St.  367;  Allison  v.  Railroad  Co.,  42  Iowa,  274;  Jeffersonville,  M.  &  I.  R. 
Co.  v.  Riley,  39  Ind.  568.  584;  Indianapolis,  P.  &  C.  R.  Co.  v.  Pitzer,  109  Ind. 
179,  6  N.  E.  310,  10  N.  E.  70;  Croom  v.  Railway  Co.,  52  Minn.  296,  53  N.  W. 
1128;  Spade  v.  Railroad  Co.,  172  Mass.  488,  52  X.  E.  747;  Haug  v.  Railway 
Co.  (X.  D.)  77  N.  W.  97;  International  &  G.  N.  R.  Co.  v.  Gilmer  (Tex.  Civ. 
App.)  45  S.  W.  1028. 

i»  Fisher  v.  Railroad  Co.,  39  W.  Va.  366,  19  S.  E.  578. 

20  Knight  v.  Railroad  Co.,  56  Me.  234;    Toledo,  W.  &  W.  R.  Co.  v.  Apper- 
son,  49  111.  480;    Nashville  &  C.  R.  Co.  v.  Messino,  1  Sneed  (Tenn.)  220.     Ex- 
pansion of  rails  improperly  laid.     Reed  v.  Railroad  Co.,  56  Barb.  (N.  Y.)  493; 
Arkansas  Midland  Ry.  Co.  v.  Griffith,  63  Ark.  491,  39  S.  W.  550;    Lynch  v. 
Railroad  Co.,  8  App.  Div.  458,  40  N.  Y.  Supp.  775;    Houston,  E.  &  W.  T.  Ry. 
Co.  v.  Xorris  (Tex.  Civ.  App.)  41  S.  W.  708. 

21  Taylor  v.  Railway  Co.,  48  N.  H.  304;    Holyoke  v.  Railway  Co.,  Id.  541; 
Curtiss  v.  Railroad  Co.,  20  Barb.  (X.  Y.)  282,  affirmed  in  18  N.  Y.  534;    Toledo, 
P.  &  W.  Ry.  Co.  v.  Conroy,  68  111.  560. 

22  Buxton  v.  Railway  Co.,  L.  R.  3  Q.  B.  549;    Candee  v.  Railroad  Co.,  21 
Wis.  589;    Schopman  v.  Railroad  Corp.,  9  Cush.  (Mass.)  24;    Thomas  v.  Rail- 
way Co.,  L.  R.  5  Q.  B.  226;    Great  Western  Railway  Co.  v.  Blake,  7  Hurl.  & 
X".  087.     So,  also,  where  the  track  ran  over  a  public  bridge.     Birmingham  v. 
Railroad  Co.  (Sup.)  14  N.  Y.  Supp.  13.     And  see  Hannibal  &  St.  J.  R.  Co.  v. 
Martin.  Ill  111.  219. 

zs  Eaton  v.  Railroad,  11  Allen  (Mass.)  500. 


§    79)  LIABILITY    TO    PASSENGERS.  207 

sion  of  trains  of  different  carriers,  he  may  maintain  his   action 
against  either  or  both.24 

Wrongful  Acts  of  Agents,  Fellow  Passengers,  and  Others. 

As  has  been  already  stated,  the  carrier  is  liable  for  the  wrongful 
acts  of  its  agents  or  servants  done  within  the  course  of  their  employ- 
ment.25 Although  there  is  no  privity  existing  between  the  carrier 
and  passenger  whereby  the  former  becoines  liable  for  the  wrongful 
acts  of  the  latter,  yet,  by  reason  of  the  circumstances  and  the  au- 
thority which  he  is  bound  to  exercise,  the  carrier  must  protect  hi& 
passengers  against  the  violence  and  improper  conduct  of  fellow  pas- 
sengers or  outsiders,  so  far  as  he  is  able  to  do  so  in  the  exercise  of 
reasonable  care  and  foresight.26  And  so,  if  a  passenger  receives  an 
injury,  which  might  have  been  reasonably  anticipated,  from  one  who 
is  improperly  received,  or  permitted  to  continue  in  the  vehicle,  the 
carrier  is  responsible.27 

Stationed  Facilities. 

In  providing,  equipping,  and  maintaining  stational  facilities  and 
appliances  the  carrier  is  bound  to  exercise  only  ordinary  care  in  view 
of  the  dangers  to  be  apprehended.28  Although  the  carrier  is  not 

» 

24  Cuddy  v.  Horn,  46  Mich.  596,  10  N.  W.  32;    Flaherty  v.  Railway  Co..  39 
Minn.  328,  40  N.  W.  160;    Tompkins  v.  Railroad  Co.,  66  Cal.  163,  4  Pac.  1165; 
Colegrove  v.  Railroad  Co.,  20  N.  Y.  492;    Central  Pass.  Ry.  Go.  v.  Kuhn,  86 
Ky.  578,  6  S.  W.  441;    Holzab  v.  Railroad  Co.,  38  La.  Ann.  185;    Union  Railway 
&  Transit  Co.  v.  Schacklett,  19  111.  Apo.  145. 

25  See  ante.  pp.  167-171. 

2s  Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Hinds,  53  Pa.  St.  512;  New  Orleans,. 
St.  L.  &  C.  R.  Co.  v.  Burke,  53  Miss.  200;  Felton  v.  Railroad  Co.,  69  Iowa,  577, 
29  X.  W.  618;  Britton  v.  Railroad  Co.,  88  N.  C.  536;  Putnam  v.  Railroad  Co., 
55  N.  Y.  108;  Batton  v.  Railroad  Co.,  77  Ala.  591;  Chicago  &  A.  R.  Co.  v. 
Pillsbury,  123  111.  9,  14  X.  E.  22;  Pittsburgh  &  C.  R.  Co.  v^  Pillow,  76  Pa.  St. 
510. 

27  Putnam  v.  Railroad  Co.,  55  X.  Y.  108;    Flint  y.  Transportation  Co.,  34 
Conn.  554;    Pittsburgh,  Ft.  W.  &  C.  Ry.  Co.  v.  Hinds,  53  Pa.  St.  512;    Flint 
v.  Transportation  Co.,  6  Blatchf.  158,  Fed.  Cas.  Xo.  4,873;    McDonnell  v.  Rail- 
road Co..  35  App.  Div.  147,  54  X.  Y.  Supp.  747;  Exton  v.  Railroad  Co.  (N.  J.  Sup.) 
42  A.  486;    Wood  v.  Railroad  Co.  (Ky.)  42  S.  W.  349;    Bailey  v.  Railroad  Co. 
(Ky.)  44  S.  W.  105.     Acts  of  third  persons.     Texas  &  P.  Ry.  Co.  v.  Jones  (Tex. 
Civ.  App.)  39  S.  W.  124;    Murphy  v.  Railway  [1897]  2  Ir.  301. 

28  Kelly  v.  Railway  Co.,  112  X.  Y.  443,  20  X.  E.  383;    Palmer  v.  Pennsyl- 
vania Co.,  Ill  X.  Y.  488,  18  X.  E.  859;    Moreland  v.  Railroad  Co.,  141  Mass.. 


208  COMMON    CARRIER    OF    PASSENGERS.  (Ch.   5 

held  to  so  high  a  degree  of  care  in  these  matters  as  in  the  act  of 
transportation,  it  is  still  his  duty  to  see  that  all  reasonable  precau- 
tions are  taken  to  insure  both  the  safety  and  comfort  of  persons  who 
are  on  the  premises  as  passengers.  Approaches  to  the  station  and 
platforms  must  be  properly  built,  and  maintained  in  good  order.29 
Ordinarily,  the  carrier  is  not  bound  to  place  platforms  on  both  sides 
of  the  track;30  and,  if  the  platform  is  reasonably  suitable,  the  car- 
rier will  not  be  liable  to  a  passenger  who  is  accidentally  injured  upon 
it.31  The  failure  to  properly  light  the  approaches,  platforms,  and 
station,32  to  allow  snow  and  ice33  or  other  obstructions34  to  accu- 
mulate and  remain  thereon,  have  been  held  to  constitute  actionable 
negligence.  And,  even  if  the  approaches  are  somewhat  remote,  the 
duty  to  maintain  them  in  a  safe  condition  still  exists.  Thus,  the  car- 
rier was  held  liable  for  the  death  of  one  who,  in  approaching  the 

31,  6  X.  E.  225;  Chicago  &  G.  T.  Ry.  Co.  v.  Stewart,  77  111.  App.  GO;  Finseth 
v.  Railway  Co.,  32  Or.  1,  51  Pac.  84. 

2»  Pennsylvania  R.  Co.  v.  Henderson,  51  Pa.  St.  315;  Hulbert  v.  Railroad 
Co.,  40  N.  Y.  145;  Warren  v.  Railroad  Co.,  8  Allen  (Mass.)  227;  Union  Pac: 
Ry.  Co.  v.  Sue,  25  Neb.  772,  41  X.  W.  801;  Liscomb  v.  Transportation  Co.,  G 
Lans.  (X.  Y.)  75;  Pennsylvania  Co.  v.  Marion,  123  Ind.  415,  23  X.  E.  973;  To- 
ledo, W.  &  W.  Ry.  Co.  v.  Grush,  67  111.  262  ;•  Alabama  G.  S.  Ry.  Co.  v.  Cog- 
gins,  88  Fed.  455,  32  C.  C.  A.  1;  Illinois  Cent.  R.  Co.  v.  Treat,  75  111.  App.  327; 
Louisville  &  X.  R.  Co.  v.  Keller  (Ky.)  47  S.  W.  1072;  Ayers  v.  Railroad  Co.. 
158  X.  Y.  254,  53  X.  E.  22;  Trinity  &  S.  Ry.  Co.  v.  O'Brien  (Tex.  Civ.  App.)  40 
S.  W.  389;  Union  Pac.  R.  Co.  v.  Evans,  52  Xeb.  50,  71  X.  W.  1062. 

so  Michigan  Cent.  R.  Co.  v.  Coleman,  28  Mich.  440. 

si  Stokes  v.  Railroad  Co.,  107  X.  C.  178,  11  S.  E.  991;  Walthers  v.  Railway 
Co.,  72  111.  App.  354. 

32  Xicholson  v.'Railway  Co.,  3  Hurl.  &  C.  534;    Jamison  v.  Railroad  Co.,  55 
Cal.  593;    Peniston  v.  Railroad  Co.,  34  La.  Ann.  777;    Patten  v.  Railway  Co., 
32  Wis.  524,  36  Wis.  413;    Beard  v.  Railroad  Co.,  48  Vt.  101;    Buenemann  v. 
Railway  Co.,  32  Minn.  390,  20  X.  W.  379;    Dice  v.  Locks  Co.,  8  Or.  60;    Louis 
ville  &  X.  R.  Co.  v.  Ricketts  (Ky.)  37  S.  W.  952. 

33  Memphis  &  C.  R.  Co.  v.  Whitfield,  44  Miss.  466;    Weston  v.  Railroad  Co., 
42  X.  Y.  Super.  Ct.  156;    Seymour  v.  Railway  Co.,  3  Biss.  43,  Fed.  Gas.  Xo. 
12,685;    Waterbury  v.  Railway  Co.,  104  Iowa,  32,  73  X.  W.  341. 

s*  Osborn  v.  Ferry  Co.,  53  Barb.  (X.  Y.)  629;  Martin  v.  Railway  Co..  16  C. 
B.  179.  Holes  in  platform.  Knight  v.  Railroad  Co.,  56  Me.  234;  Chicago  & 
X.  W.  Ry.  Co.  v.  Fillmore,  57  111.  265;  Liscomb  v.  Transportation  Co..  G  Lans. 
(X.  Y.)  75.  Passengers  obliged  to  cross  tracks.  Keating  v.  Railroad  Co.,  3 
Lans.  (X.  Y.)  469;  Baltimore  &  0.  B.  Co.  v.  State,  60  Md.  449;  Klein  v.  Jew- 
ett,  2U  X.  J.  Eq.  474. 


§    79)  LIABILITY    TO    PASSENGERS.  209 

station,  was  killed  by  falling  off  a  bridge  erected  by  the  company  as 
a  means  of  more  convenient  access  to  its  depot.35 

The  same  rules  apply  to  carriers  by  water  in  the  provision  and 
maintenance  of  suitable  wharves36  and  gang  planks.37  If,  however, 
the  carrier  has  observed  ordinary  precautions  for  the  safety  of  the 
passenger  in  and  about  its  stations  and  approaches,  its  duty  is  per- 
formed, and  it  is  not  bound  to  anticipate  or  guard  against  the  failure 
of  the  passenger  to  use  ordinary  care  on  his  part.38 

Liability  of  Lessees  and  Trustees. 

A  common  carrier  of  passengers  cannot  escape  liability  for  the 
nonperformance  of  its  duties  by  transferring  its  business  and  prop- 
erties to  the  hands  of  a  lessee  or  trustee,  unless  it  is  done  with  leg- 
islative sanction.39  It  will,  therefore,  in  the  absence  of  such  author- 
ity, be  liable  to  passengers  for  injuries  sustained  by  them  through 
the  negligence  of  a  lessee  40  or  trustee  which  it  has  selected,41  or  for 
the  negligence  of  any  other  person  or  body  of  persons  to  whom  it 
has  delegated  the  transaction  of  its  business  or  the  performance  of 
its  duties,42  even  if  such  delegation  is  merely  temporary,  and  for  a 
specific  purpose.43  In  such  cases  a  joint  or  several  action  may  also 
be  maintained  against  the  representative  of  the  carrier.44 

ss  Longmore  v.  Railway,  19  C.  B.  (N.  S.)  183. 

se  Knight  v.  Railroad  Co.,  56  Me.  234;  Bacon  v.  Steamboat  Co.,  90  Me.  46, 
3*  Atl.  328. 

37  Hrebrik  v.  Carr,  29  Fed.  298;   Croft  v.  Steamship  Co.  (Wash.)  55  Pac.  42. 

ss  Sturgis  v.  Railway  Co.,  72  Mich.  619,  40  X.  W.  914;  Bennett  v.  Railroad 
Co.,  57  Conn.  422,  18  Atl.  668. 

so  Thomas  v.  Railroad  Co.,  101  U.  S.  71;  New  York  &  M.  L.  R.  Co.  v.  Wi- 
nans,  17  How.  30;  Nugent  v.  Railroad  Co.,  80  Me.  62,  12  Atl.  797;  Pennsyl- 
vania R.  Co.  v.  St.  Louis,  A.  &  T.  H.  R.  Co.,  118  U.  S.  290,  6  Sup.  Ct.  1094; 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Morris,  67  Tex.  692,  4  S.  W.  156;  Railway  Co.  v. 
Brown,  17  Wall.  450. 

40  International  &  G.  N.  R.  Co.  v.  Dunham,  68  Tex.  231,  4  S.  W.  472. 

41  Naglee  v.  Railroad  Co.,  83  Va.  707,  3  S.  E.  369. 

42  Littlejohn  v.  Railroad  Co.,  148  Mass.  478,  20  N.  E.  103;    Peters  v.  Ry- 
lands,  20  Pa.  St.  497. 

43  Chattanooga,  R.  &  C.  R.  Co.  v.  Liddell,  85  Ga.  482,  11  S.  E.  853. 

44  Davis  v.  Railroad  Co.,  121  Mass.  134;    International  &  G.  N.  R.  Co.  v. 
Dunham.  68  Tex.  231,  4  S.  W.  472;    Ingersoll  v.  Railroad  Co.,  8  Allen  (Mass.) 
438. 

BAR.NEG.— 14 


210  COMMON    CARRIER    OF    PASSENGERS.  (Ch.   5 

80.  LIABILITY  FOR  DELAY— A  public  carrier  of  pas- 
sengers is  bound  to  use  due  diligence  in  transport- 
ing them  according  to  published  schedule  time,  and 
is  liable  to  them  for  damages  occurring  by  reason 
of  its  failure  in  that  respect. 

The  published  time-table  is  a  part  of  the  contract  made  with  all 
persons  who  apply  for  transportation  in  accordance  therewith.1  If 
changes  are  made  in  the  time-table,  the  same  publicity  should  be 
given  to  such  alteration  as  to  the  original  publication.  If  the  origi- 
nal time-table  was  published  in  a  newspaper,  the  mere  posting  of  a 
notice  in  the  carrier's  office  would  not  be  sufficient  notice  of  a  change 
of  time  to  excuse  the  carrier.2  It  has,  however,  been  held  that,  even 
after  the  sale  of  the  ticket,  the  carrier  has  the  right,  on  giving  rea- 
sonable notice,  to  vary  the  running  time  of  its  trains.3  But,  when 
the  transportation  has  actually  begun,  the  carrier  must  use  due  dili- 
gence to  conform  to  schedule  time,  and  will  be  liable  to  the  passen- 
ger for  damage  caused  by  any  delay  arising  through  its  negligence; 
otherwise,  if  it  occurs  through  the  act  of  God,4  unless  the  carrier  has 
made  a  special  contract  to  carry  within  a  definite  time.5 

Injuries  to  Persons  not  Passengers. 

Towards  all  other  persons,  not  passengers,  with  whom  the  carrier 
is  brought  in  contact,  he  is  bound  to  exercise  no  more  than  ordinary 

§  80.  i  Sears  v.  Railroad  Co.,  14  Allen  (Mass.)  433;  Savannah,  S.  &  S.  R. 
Co.  v.  Bonaud,  58  Ga.  180;  Heirn  v.  McCaughan,  32  Miss.  17;  Hawcroft  v. 
Railway  Co.,  8  Eng.  Law  &  Eq.  362;  Hamlin  v.  Railway  Co.,  1  Hurl.  &  N.  408. 

2  Sears  v.  Railroad  Co.,  14  Allen  (Mass.)  433. 

s  id. 

*  Quimby  v.  Vanderbilt,  17  N.  Y.  306;  Williams  v.  Same,  28  N.  Y.  217; 
Weed  v.  Railroad  Co.,  17  N.  Y.  362;  Van  Buskirk  v.  Roberts,  31  N.  Y.  601; 
Eddy  v.  Harris,  78  Tex.  661,  15  S.  W.  107;  Alabama  &  V.  Ry.  Co.  v.  Purnell, 
69  Miss.  652,  13  South.  472;  Cobb  v.  Howard,  3  Blatchf.  524,  Fed.  Cas.  No. 
2,924;  Houston,  E.  &  W.  T.  Ry.  Co.  v.  Rogers  (Tex.  Civ.  App.)  40  S.  W.  201; 
Hamlin  v.  Railway  Co.,  1  Hurl.  &  N.  408;  Hobbs  v.  Railway  Co.,  L.  R.  10 
Q.  B.  111. 

s  Walsh  v.  Railway  Co.,  42  WTis.  23.  And  see,  also,  Williams  v.  Vander- 
bilt, 28  N.  Y.  217;  Ward  v.  Same,  4  Abb.  Dec.  (N.  Y.)  521;  Watson  v.  Duy- 
kinck,  3  Johns.  (N.  Y.)  335;  Dennison  v.  The  Wataga,  1  Phila.  (Pa.)  468; 
Brown  v.  Harris,  2  Gray  (Mass.)  359;  Porter  v.  The  New  England,  17  Mo. 
290;  West  v.  The  Uncle  Sam,  1  McAll.  505,  Fed.  Cas.  No.  17,427. 


§    30)  LIABILITY    FOR    DELAY.  211 

care.  Thus,  persons  coming  to  a  railroad  station  to  escort  arriving 
or  departing  passengers  do  so  on  the  implied  invitation  of  the  car- 
rier, who  owes  them  the  duty  of  ordinary  care  only  as  to  stational 
facilities.6  Hackmen  who  bring  passengers  to  the  station  are 
entitled  to  the  same  degree  of  care,7  and  employe's  of  another  car- 
rier, rightfully  there  in  the  discharge  of  their  duties.8  And  if  the 
escort  of  a  passenger  is  known  to  be  on  the  train,9  it  is  the  duty  of 
the  carrier  to  protect  him  from  sudden  startings,  and  to  give  the 
customary  signals.10 

a  McKone  v.  Railroad  Co.,  51  Mich.  601,  17  N.  W.  74;  Dowd  v.  Railway  Co., 
84  Wis.  105,  54  N.  W.  24;  Doss  v.  Railroad  Co.,  59  Mo.  27;  Little  Rock  &  Ft.  S. 
Ry.  Co.  v.  Lawton,  55  Ark.  428,  18  S.  W.  543;  Langan  v.  Railway  Co.,  72 
Mo.  392;  Stiles  v.  Railroad,  65  Ga.  370;  Tobin  v.  Railroad  Co.,  59  Me.  183; 
Yarnell  v.  Railroad  Co.,  113  Mo.  570,  21  S.  W.  1;  Hamilton  v.  Railway  Co., 
64  Tex.  251.  This  case  goes  to  the  extreme  length  of  holding  that  the  facilities 
should  be  absolutely  "safe,"  followed  in  Texas  &  P.  Ry.  Co.  v.  Best,  66  Tex. 
116,  18  S.  W.  224;  Lucas  v.  Railroad  Co.,  6  Gray  (Mass.)  64;  Griswold  v.  Rail- 
road Co.,  64  Wis.  652,  26  N.  W.  101;  Missouri,  K.  &  T.  Ry.  Co.  v.  Miller,  8 
Tex.  Civ.  App.  241,  27  S.  W.  905;  Gautret  v.  Egerton,  L.  R.  2  O.  P.  371. 

7  Tobin  v.  Railroad  Co.,  59  Me.  183. 

»Catawissa  R.  Co.  v.  Armstrong,  49  Pa.  St  186;  Philadelphia,  W.  &  B. 
R.  Co.  v.  State,  58  Md.  372;  Illinois  Cent.  R.  Co.  v.  Frelka,'110  111.  498;  Zeig- 
ler  v.  Railroad  Co.,  52  Conn.  543;  Pennsylvania  Co.  v.  Gallagher,  40  Ohio 
St.  637;  In  re  Merrill,  54  Vt.  200;  Vose  v.  Railway  Co.,  2  Hurl.  &  N.  728. 
And  see,  as  to  consignees  and  their  agents  personally  assisting  in  the  recep- 
tion and  delivery  of  freight,  Foss  v.  Railway  Co.,  33  Minn.  392,  23  N.  W.  553; 
Holmes  v.  Railway  Co.,  4  Exch.  254;  Watson  v.  Railway  Co.,  66  Iowa,  164, 
23  N.  W.  380;  Illinois  Cent.  R.  Co.  v.  Hoffman,  67  111.  287;  Xewson  v.  Rail- 
road Co.,  29  N.  Y.  383;  New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Bailey,  40  Miss. 
395;  Shelby ville  L.  B.  R.  Co.  v.  Lewark,  4  Ind.  471;  Dufour  v.  Railroad  Co., 
67  Cal.  319,  7  Pac.  769;  Mark  v.  Railway  Co.,  32  Minn.  208,  20  N.  W.  131; 
Goldstein  v.  Railway  Co.,  46  Wis.  404,  1  N.  W.  37;  Burns  v.  Railroad  Co.,  101 
Mass.  50;  Rogstad  v.  Railway  Co.,  31  Minn.  208,  17  N.  W.  287. 

o  Coleman  v.  Railroad  Co.,  84  Ga.  1,  10  S.  E.  498;  Griswold  v.  Railroad  Co., 
64  Wis.  652,  26  N.  W.  101;  McLarin  v.  Railroad  Co.,  85  Ga.  504,  11  S.  E.  840. 

10  Doss  v.  Railroad  Co.,  59  Mo.  27;  Johnson  v.  Railway  Co.,  53  S.  C.  303, 
31  S.  E.  212;  International  &  G.  N.  R.  Co.  v.  Satterwhite  (Tex.  Civ.  App.) 
47  S.  W.  41;  Id.,  38  S.  W.  401;  Missouri,  K.  &  T.  Ry.  Co.  v.  Miller  (Tex. 
Civ.  App.)  39  S.  W.  583. 


212  COMMON    CARRIER    OF   PASSENGERS.  (Ch.   5 

SAME— LIMITATION  OF  LIABILITY. 

£51.  The  prevailing  doctrine  in  this  country  denies  the  right 
of  the  common  carrier  of  passengers  to  place  any 
limitation  upon  his  liability  for  the  result  of  his 
negligence  or  that  of  his  servants. 

"It  is  now  well  settled  by  the  great  weight  of  authority  that  the 
-carrier  of  passengers  cannot,  even  by  special  contract,  relieve  him- 
self in  any  degree  from  liability  for  injuries  caused  to  his  passengers 
iby  the  negligence  of  himself  or  his  servants.1  "Public  policy  forbids 
that  he  should  be  relieved  by  special  agreement  from  that  degree 
of  diligence  and  fidelity  which  the  law  has  exacted  in  the  discharge 
of  his  duties."  2  In  some  courts  a  distinction  has  been  made  in  the 
case  of  gratuitous  passengers  permitting  a  limitation,  by  express 
contract,  of  liability  for  anything  less  than  gross  negligence.3  In 
•commenting  on  this  point,  Mr.  Justice  Grier  said:  "And  whether 
consideration  for  such  transportation  be  pecuniary  or  otherwise, 


§  81.  i  Cleveland,  P.  &  A.  R.  Co.  v.  Curran,  19  Ohio  St.  1;  Jacobus  v. 
TRailway  Co.,  20  Minn.  125  (Gil.  110);  Rose  v.  Railroad  Co.,  39  Iowa,  246; 
Pennsylvania  R.  Co.  v.  Henderson,  51  Pa.  St.  315;  Indiana  Cent.  Ry.  Co.  v. 
iMundy,  21  Ind.  48;  School  Dist.  in  Medfield  v.  Boston,  H.  &  E.  R.  Co.,  102 
ZSIass.  552;  Empire  Transp.  Co.  v.  Wamsutta  Oil-Refining  &  Mining  Co.,  63 
J»a.  St.  14;  Flinn  v.  Railroad  Co.,  1  Houst.  (Del.)  469;  Virginia  &  T.  R.  Co. 
v.  Sayers,  26  Grat.  (Va.)  328;  Sager  v.  Railroad  Co.,  31  Me.  228;  Mobile  & 
O.  R.  Co.  v.  Hopkins,  41  Ala.  486;  Southern  Exp.  Co.  v.  Crook,  44  Ala.  469; 
Ohio  &  M.  R.  Co.  v.  Selby,  47  Ind.  471;  Maslin  v.  Railway  Co.,  14  W.  Va. 
180;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  McGown,  65  Tex.  640;  Merchants'  Dispatch 
.&  Transportation  Co.  v.  Cornforth,  3  Colo.  281;  Rice  v.  Railway  Co.,  63  Mo. 
314;  Grand  Trunk  Ry.  Co.  v.  Stevens,  95  U.  S.  655;  Union  Exp.  Co.  v.  Gra- 
liam,  26  Ohio  St.  595;  Carroll  v.  Railway  Co.,  88  Mo.  239:  Clark  v.  Geer,  32 
•€.  C.  A.  295,  86  Fed.  447;  Illinois  Cent  R.  Co.  v.  Beebe,  174  111.  13,  50  X.  E. 
1019;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Keefer,  146  Ind.  21,  44  N.  E.  796;  Louis- 
ville &  N.  R.  Co.  v.  Bell  (Ky.)  38  S.  W.  3;  Doyle  v.  Railroad  Co.,  166  Mass. 
-492,  44  N.  E.  611;  Baltimore  &  O.  R.  Co.  v.  McLaughlin,  19  C.  C.  A.  551,  73 
Ted.  519. 

2  Davidson  v.  Graham,  2  Ohio  St.  131.  See  Starr  v.  Railway  Co.,  67  Minn. 
18,  69  N.  W.  632. 

s  Arnold  v.  Railroad  Co.,  83  111.  273;  Illinois  Cent  R.  Co.  v.  Read,  37  111. 
-484;  Indiana  Cent.  R.  Co.  v.  Mundy,  21  Ind.  48. 


§    81)  LIMITATION    OF    LIABILITY.  21S> 

the  personal  safety  of  the  passengers  should  not  be  left  to  the  sport 
of  chance  or  the  negligence  of  careless  agents.  Any  negligence  inv 
such  cases  may  well  deserve  the  epithet  of  'gross.' "  *  And  in  the- 
leading  case  of  New  York  Cent.  K.  Co.  v.  Lockwood,5  it  was  also  held 
that  no  distinction  as  to  the  degrees  of  negligence  could  be  consid- 
ered in  determining  the  validity  of  contracts  for  the  limitation  of 
the  carrier's  liability;  that  a  failure  to  exercise  the  degree  of  care 
requisite  for  the  safety  of  the  passenger  in  the  circumstances  of  the 
case  would  constitute  negligence,  against  which  the  carrier  would 
not  be  permitted  to  contract.6  In  those  courts  where  it  is  permit- 
ted the  carrier  to  make  such  absolving  contracts  with  gratuitous 
passengers,  it  is  essential  to  their  validity  that  they  be  clearly  and. 
unequivocally  expressed.7 

*  Philadelphia  &  R.  R.  Co.  v.  Derby,  14  How.  468,  at  page  486.    See,  alsoy. 
Williams  v.  Railroad  Co.  (Utah)  54  Pac.  991. 
e  17  Wall.  357. 

«  See  cases  collected  in  Whart.  Neg.  §  589. 
i  Keniiey  v.  Railroad  Co.,  125  N.  Y.  422,  26  N.  E.  626. 


214  CARRIERS    OF   GOODS.  (Ch.   6 

/ 

CHAPTER  VI. 

CARRIERS  OF  GOODS. 

82.  Definition. 

83.  Liability  for  Loss  or  Damage. 

84.  Act  of  Cod  or  Public  Enemy. 

85.  Act  of  Shipper. 

86.  Authority  of  Law. 

87.  Inherent  Nature  of  Goods. 
88-89.  Liability  for  Delay. 

90.  Special  Contract  of  Delivery. 

91.  Contracts  Limiting  Liability. 

92.  Limitation  in  Illinois. 

93.  Limitation  in  New  York. 

94.  Limitation  of  Amount  of  Liability. 

95.  Limiting  Time  and  Manner  of  Making  Claims. 

96.  Consideration. 

97.  Construction  of  Limiting  Contracts. 

98.  Notices  Limiting  Liability. 

99.  Actual  Notice  of  Reasonable  Rules. 

100.  Special  Classes  of  Goods. 

101.  Live  Stock. 

102.  Baggage. 

103.  Effects  of  Occupants  of  Sleeping  Cars. 
104-105.  Beginning  of  Liability. 

106.  Delivery  for  Immediate  Transportation. 

107.  Acceptance. 

108.  Termination  of  Liability. 

109.  Delivery  to  Consignee. 

110.  Delivery  to  Connecting  Carrier. 

111.  Excuses  for  Nondelivery. 

112.  Superior  Adverse  Claim. 

113.  Stoppage  in  Transitu. 

114.  Excepted  Perils. 

DEFINITION. 

82.  A  common  carrier  is  one  who  represents  to  the  public 
that  he  will  carry  goods  for  hire  for  all  persons,  at 
all  times. 


§    82)  DEFINITION.  215 

Essential  Characteristics. 

In  essential  characteristics  the  carrier  of  goods  resembles  the  car- 
rier of  passengers.1  It  should  be  observed,  however,  that  the  car- 
rier of  passengers  remains  such  even  in  the  gratuitous  transportation 
of  a  passenger,2  whereas,  if  no  consideration  is  paid  in  a  particular 
case  for  the  carriage  of  goods,  the  carrier,  although  regularly  en- 
gaged in  the  business  of  carrying  goods  for  hire  for  the  public  gener- 
ally, is  not,  in  that  particular  case,  a  common  carrier,  but  a  gratui- 
tous bailee.3 

The  employment  of  the  carrier  must  be  public  and  habitual,  other- 
wise he  will  be.  no  more  than  a  special  or  private  carrier,  whose  rights, 
duties,  and  liabilities  are  materially  modified.4  The  test  is  said  to 
be,  "not  whether  he  is  carrying  on  a  public  employment,  or  whether 
he  carries  to  a  fixed  place,  but  whether  he  holds  out,  either  expressly 
or  by  a  course  of  conduct,  that  he  will  carry  for  hire,  so  long  as  he  has 
room,  the  goods  of  all  persons  indifferently,  who  send  him  goods  to 
be  carried."  °  » 

The  following  have  been  held  to  be  common  carriers:  Express 
companies;6  transportation  companies;7  canal  companies;8  stage 

§  82.  i  Hale,  Bailm.  &  Carr.  p.  304.  And  see  "Carriers  of  Passengers," 
Ante,  pp.  175,  176. 

2  See  ante,  p.  190. 

s  Hale,  Bailrn.  &  Carr.  p.  308;  Citizens'  Bank  v.  Nantucket  Steamboat  Co., 
2  Story,  16,  Fed.  Gas.  No.  2,730. 

*  2  Story,  Cont.  (5th  Ed.)  §  919. 

s  Nugent  v.  Smith,  1  C.  P.  Div.  19,  at  page  27;  Id.,  423;  Chattock  v.  Bellamy, 
15  Reports,  340. 

o  United  States  Exp.  Co.  v.  Backman,  28  Ohio  St.  144;  Buckland  v.  Express 
€o.,  97  Mass.  124;  Lowell  Wire-Fence  Co.  v.  Sargent,  8  Allen  (Mass.)  189; 
Bank  of  Kentucky  v.  Adams  Exp.  Co.,  93  U.  S.  174;  Sweet  v.  Barney,  23  N. 
Y.  335;  American  Exp.  Co.  v.  Hockett,  30  Ind.  250;  Gulliver  v.  Express  Co., 
38  111.  503;  Verner  v.  Sweitzer,  32  Pa.  St.  208;  Christenson  v.  Express  Co., 
15  Minn.  270  (Gil.  208);  Sherman  v.  Wells,  28  Barb.  (N.  Y.)  403;  Baldwin  v. 
Express  Co.,  23  111.  197;  Southern  Exp.  Co.  v.  Newby,  36  Ga.  635;  Hayes  v. 
Wells.  Fargo  &  Co.,  23  Cal.  185. 

-  Merchants'  Dispatch  Transp.   Co.  v.  Bloch,  86  Tenn.  392,  6  S.   W.   881. 
But  a  mere  forwarding  agent  is  not  a  common  carrier.     Roberts  v.  Turner, 
12  Johns.  (N.  Y.)  232. 

s  Miller  v.  Navigation  Co.,  10  N.  Y.  431;  Hyde  v.  Navigation  Co.,  5  Term  R. 
389. 


216  CARRIERS    OF    GOODS.  (Ch.    6 

coaches  and  omnibuses,  as  to  baggage  carried;9  hackmen  and  cab 
drivers; 10  railroad  companies,  as  to  baggage  "  and  freight; 12  barge- 
men, lightermen,  canal-boat  men;13  ferries;14  rafts  or  flat  boats;15 
steamboats  and  merchant  ships; 16  railroad  receivers 1T  and  trustees.18 

»  Verner  v.  Sweitzer,  32  Pa.  St.  208;  Bonce  v.  Railway  Co.,  53  Iowa,  278, 
5  N.  W.  177;  Parmelee  v.  Lowitz,  74  111.  110;  Dibble  v.  Brown,  12  Ga.  217; 
Parmelee  v.  McXulty,  19  111.  550.  Cabs,  drays,  etc.,  see  Story,  Bailm.  §  496; 
Richards  v.  Westcott  2  Bosw.  (N.  Y.)  589;  Powers  v.  Davenport,  7  Blackf. 
(Ind.)  497;  McHenry  v.  Railroad  Co.,  4  Har.  (Del.)  448.  See,  also,  Sales  v. 
Stage  Co.,  4  Iowa,  547;  Hollister  v.  Nowlen,  19  Wend.  (N.  Y.)  234;  Powell  v. 
Mills,  30  Miss.  231. 

10  Lemon  v.  Chanslor,  08  Mo.  340;    Bonce  v.  Railway  Co.,  53  Iowa,  278, 
5  N.  W.  177. 

11  Macrow  v.  Railway  Co.,  L.  R.  6  Q.  B.  612;    Hannibal  R.  Co.  v.  Swift, 
12  Wall.  262. 

12  Norway  Plains  Co.  v.  Boston  &  M.  R.  Co.,  1  Gray  (Mass.)  263;    Thomas 
v.  Railroad  Corp.,  10  Mete.  (Mass.)  472;    Root  v.  Railroad  Co.,  45  N.  Y.  524; 
Fuller  v.  Railroad  Co.,  21  Conn.  557,  570;  Rogers  Locomotive  &  Machine  Works 
v.  Erie  R.  Co.,  20  N.  J.  Eq.  379;    Noyes  v.  Railroad  Co.,  27  Vt.  110;    Contra 
Costa  Coal  Mines  R.  Co.  v.  Moss,  23  Cal.  323. 

is  Bowman  V.  Teall,  23  Wend  (N.  Y.)  306,  309;  Parsons  v.  Hardy,  14  Wend. 
(N.  Y.)  215;  De  Mott  v.  Lara  way,  Id.  225.  Compare  Fish  v.  Clark,  49  X.  Y. 
122,  And  see  Humphreys  v.  Reed,  6  Whart.  (Pa.)  435;  Fuller  v.  Bradley,  25 
Pa.  St.  120;  Arnold  v.  Halenbake,  5  Wend.  (N.  Y.)  33. 

i*Wyckoff  v.  Ferry  Co.,  52  N.  Y.  32;  Le  Barren  v.  Ferry  Co.,  11  Allen 
(Mass.)  312;  Lewis  v.  Smith,  107  Mass.  334;  White  v.  Winnisimmet  Co.,  7 
Cush.  (Mass.)  156;  Fisher  v.  Clisbee,  12  111.  344;  Pomeroy  v.  Donaldson,  5 
Mo.  36;  Whitmore  v.  Bowman,  4  G.  Greene  (Iowa)  148;  Miller  v.  Pendlcton, 
8  Gray  (Mass.)  547;  Claypool  v.  McAllister,  20  111.  504;  Sanders  v.  Young,  1 
Head  (Tenn.)  219;  Wilson  v.  Hamilton,  4  Ohio  St.  723;  Harvey  v.  Rose,  26 
Ark.  3;  Powell  v.  Mills,  37  Miss.  691;  Griffith  v.  Cave,  22  Cal  535;  Hall  v. 
Renfro,  3  Mete.  (Ky.)  52;  Babcock  v.  Herbert,  3  Ala.  392. 

is  Steele  v.  McTyer's  Adm'r,  31  Ala.  667. 

i«2  Kent,  Comm.  599;  Harrington  v.  McShane,  2  Watts  (Pa.)  443;  Clark  v. 
Barn  well,  12  How.  272;  The  Delaware,  14  Wall.  579;  Hastings  v.  Pepper,  11 
Pick.  (Mass.)  41;  Gage  v.  Tirrell,  9  Allen  (Mass.)  299;  Elliott  v.  Rossell,  1O 
Johns.  (N.  Y.)  1;  Williams  v.  Branson,  5  N.  C.  417;  Crosby  v.  Fitch,  12  Conn. 
410;  Parker  v.  Flagg,  26  Me.  181;  Swindler  v.  Hilliard,  2  Rich.  Law  (S.  C.) 
286;  McGregor  v.  Kilgore,  6  Ohio,  358;  Benctt  v.  Steamboat  Co.,  6  C.  B. 
775;  Crouch  v.  Railway  Co.,  14  C.  B.  255,  284. 

IT  Nichols  v.  Smith,  115  Mass.  332;  Paige  v.  Smith,  99  Mass.  395;  Blumenthal 
v.  Brainerd,  38  Vt.  402. 

is  Rogers  v.  Wheeler,  2  Lans.  (N.  Y.)  486;  Id.,  43  N.  Y.  598;  Faulkner  v. 
Hart,  44  N.  Y.  Super.  Ct.  471;  Sprague  v.  Smith,  29  Vt  421.  Truckmen  are 


§    So)  LIABILITY    FOR    LOSS    OR    DAMAGE.  217 

But  a  company  operating  sleeping  cars  in  connection  with  railway 
trains  is  not  a  common  carrier,  nor  an  innkeeper,  as  to  goods  or 
baggage  of  the  passenger; 19  but  such  companies  are  liable  for  failure 
to  use  ordinary  care  in  protecting  their  passengers  from  loss  by 
theft.20  So,  also,  in  the  case  of  steamships,  packets,  etc.21  Where  a 
railroad  lets  cars  and  furnishes  tracks  and  motive  power,  it  has  been 
held  that  it  is  22  and  is  not 23  a  common  carrier. 

LIABILITY  FOR  LOSS  OR  DAMAGE. 

83.  In  the  absence  of  special  contract  varying  the  obliga- 
tion, the  common  carrier  is  an  insurer  of  the  goods 
intrusted  to  him,  and  is  liable  for  all  loss  or  dam- 
age, except  such  as  is  caused  by 

(a)  The  act  of  God  or  the  public  enemy. 

(b)  The  act  of  the  shipper. 

(c)  Authority  of  law. 

(d)  Inherent  nature  of  goods. 

common  carriers,  Jackson  Architectural  Iron  Works  v.  Hurlbut,  158  N.  Y.  34, 
52  N.  E.  6G5;  and  street  car  companies,  State  v.  Spokane  St.  Ry.  Co.,  19  Wash. 
518,  53  Pac.  719. 

is  Pullman  Palace-Car  Co.  v.  Smith,  73  111.  360;  Pullman  Car  Co.  v.  Gard- 
ner, 3  Penny.  (Pa.)  78;  Blum  v.  Car  Co.,  1  Flip.  500,  Fed.  Gas.  No.  1,574; 
Woodruff  Sleeping  &  Parlor  &  Coach  Co.  v.  Diehl,  34  Ind.  474;  Pullman 
Palace-Car  Co.  v.  Lowe,  28  Neb.  239,  44  N.  W.  226;  Barrott  v.  Car  Co.,  51  Fed. 
796;  Pullman  Palace-Car  Co.  v.  Freudenstein,  3  Colo.  App.  540,  34  Pac.  578. 

20  Lewis  v.  Car  Co.,  143  Mass.  267,  9  N.  E.  615;    Whitney  v.  Car  Co.,  143 
Mass.  243,  9  N.  E.  619;    Pullman  Palace-Car  Co.  v.  Pollock,  69  Tex.  120,  5 
S.  W.  814. 

21  Clark  v.  Burns,  118  Mass.  275.     Steamboat  owners  are  common  carriers, 
but  are  not  responsible  to  passengers  for  loss  of  personal  belongings  which  are 
not  delivered  to  the  designated  officer  of  the  boat  for  safe-keeping.     The  Crys- 
tal Palace  v.  Yanderpool,  16  B.  Mon.  (Ky.)  302;    Abbott  v.  Bradstreet,  55  Me. 
530. 

22  Mallory  v.  Railroad  Co.,  39  Barb.  (N.  Y.)  488;   Hannibal  R.  Co.  v.  Swift, 
12  Wall.  262. 

23  East  Tennessee  &  G.  R.  Co.  v.  Whittle,  27  Ga.  535;   Ohio  &  M.  R.  Co.  v. 
Dunbar,  20  111.  624;    Kimball  v.  Railroad  Co.,  26  Vt.  247.     Logging  railroad 
not  a  common  carrier,  Wade  v.  Lumber  Co.,  20  C.  C.  A.  515,  74  Fed.  517;   nor 
towboat,  Knapp,  Stout  &  Co.  v.  McCaffrey,  178  111.  107,  52  N.  E.  898;   Emiliusen 
V.  Railroad  Co.,  30  App.  Div.  203,  51  N.  Y.  Supp.  600. 


218  CARRIERS    OF    GOODS.  (Ch.   6 

The  warranty  of  the  carrier  is  that  he  will  safely  and  securely  carry 
-and  deliver,  and  under  the  common  law  this  is  his  obligation  unless 
he  has  made  a  special  contract  with  the  customer,  modifying  the  lia- 
bility.1 Hence  proof  of  nondelivery  of  the  goods  at  the  destination 
establishes,  prima  facie,  a  breach  of  the  warranty.2  To  sustain  an 
action  for  loss,  diminution,3  or  damage,4  it  is  sufficient  to  show  the 
difference  in  amount  or  quality  at  the  time  of  shipping  and  the  time 
of  receipt  by  the  consignee. 

Custody  of  Shipper. 

In  order  to  impose  this  utmost  liability  on  the  carrier,  it  is  essen- 
tial that  the  goods  should  be  placed  and  remain  in  the  exclusive 
custody  of  the  carrier.  If  the  shipper  or  his  personal  representative 
accompanies  them,  and  retains  over  them  any  degree  of  control  or 
possession,  the  extraordinary  liability  of  a  common  carrier  does  not 
attach.5  Having  elected  not  to  intrust  the  care  of  his  goods  to  the 
carrier,  but  to  retain  them  in  his  own  control,  there  is  no  basis  of 
liability  on  which  to  charge  the  carrier.  And  so  where  one  shipped 
goods  by  boat,  put  a  guardian  on  board,  who  locked  the  hatches,  and 
went  with  the  goods,  to  see  that  they  were  delivered  safely,  the  pro- 

§  83.  i  Coggs  v.  Bernard,  2  Ld.  Raym.  909;  Fish  v.  Chapman,  2  Ga,  349; 
Williams  v.  Grant,  1  Conn.  487;  Merritt  v.  Earle,  29  N.  Y.  115;  Parsons  v. 
Hardy,  14  Wend.  (N.  Y.)  215;  Colt  v.  McMechen,  6  Johns.  (N.  Y.)  100;  Wood  v. 
Crocker,  18  Wis.  345;  Welsh  v.  Railroad  Co.,  10  Ohio  St.  65;  Parker  v.  Flagg, 
26  Me.  181;  Blumenthal  v.  Brainerd,  38  Vt.  402;  Hooper  v.  Wells,  Fargo  & 
Co.,  27  Cal.  11;  Adams  Exp.  Co.  v.  Darnell,  31  Ind.  20;  Gulf,  C.  &  S.  F.  Ry. 
Co.  v.  Levl,  76  Tex.  337,  13  S.  W.  191;  Daggett  v.  Shaw,  3  Mo.  264;  Forward 
T.  Pittard,  1  Term  R.  27. 

2  Gilbart  v.  Dale,  5  Adol.  &  E.  543;   Griffiths  v.  Lee,  1  Car.  &  P.  110. 

s  Hawkes  v.  Smith,  Car.  &  M.  72, 

« Higginbotham  v.  Railway  Co.,  10  Wkly.  Rep.  358.  Proof  of  injury  is 
sufficient  where  the  freight  is  live  stock.  "The  shipper  must  show  some  'in- 
jurious accident,'  or  some  injury  to  the  thing  shipped,  which  could  not  have 
been  the  result  of  its  inherent  nature  or  defects,  or  which  stimulated  or  acceler- 
ated the  injury  arising  out  of  such  inherent  nature  or  defects."  Hutch.  Carr. 
§  768a;  Pennsylvania  R.  Co.  v.  Rairordon,  119  Pa.  St.  577,  13  Atl.  324;  Hussey 
v.  The  Saragossa,  3  Woods,  380,  Fed.  Gas.  No.  6,949.  But  see  The  America, 
.8  Ben.  491,  Fed.  Cas.  No.  283;  Lindsley  v.  Railway  Co.,  36  Minn.  539,  33 
N.  W.  7;  Louisville  &  N.  R.  Co.  v.  Wynn,  88  Tenn.  320,  14  S.  W.  311;  Colum- 
bus &  W.  Ry.  Co.  v.  Kennedy,  78  Ga.  646,  3  S.  W.  267. 

6  Tower  v.  Railroad  Co.,  7  Hill  (N.  Y.)  47.  But  see  Hollister  v.  Nowlen, 
19  Wend.  (N.  Y.)  234;  Yerkes  v.  Sabin,  97  Ind.  141. 


§    83)  LIABILITY    FOR    LOSS    OR    DAMAGE.  219 

prietor  of  the  boat  was  held  not  liable  as  a  common  carrier,  there  "not 
being  any  trust  in  the  defendant,  and  the  goods  were  not  to  be  con- 
sidered as  ever  having  been  in  his  possession,  but  in  the  possession 
of  the  company's  servant.6 

Burden  of  proof . 

It  is  therefore  evident  that  in  an  action  for  the  loss  or  damage  of 
goods,  in  the  absence  of  special  contract,  proof  of  the  fact  of  loss  or 
injury  is  sufficient  to  establish  a  prima  facie  case  of  liability.  The 
burden  of  proof  then  devolves  on  the  defendant  to  show  that  the  loss 
or  injury  was  the  result  of  one  of  the  excepted  causes  before  alluded 
to,  viz.  the  act  of  God  or  the  public  enemy,  the  act  of  the  shipper,  the 
exercise  of  public  authority,  or  the  inherent  nature  of  the  goods, 
against  which  the  carrier  is  not  an  insurer.7  Where  it  is  made  to  ap- 
pear that  one  or  more  of  these  excepted  causes  was  instrumental  in 
producing  the  injury  complained  of,  the  carrier  is,  prima  facie,  not 
liable.  To  charge  him  with  the  loss,  the  burden  of  proof  is  then 
shifted  to  the  shipper,  to  show  that  he  was  negligent.8  On  this  lat- 
ter point,  however,  many  courts  hold  that  it  is  incumbent  on  the  car- 
rier to  show  not  only  that  the  loss  or  injury  was  caused  by  an  except - 

e  East  India  Co.  v.  Pullen,  2  Strange,  690. 

7  Davis  v.  Railway  Co.,  89  Mo.  340,  1  S.  W.  327;  Wallingford  v.  Railroad 
Co.,  20  S.  C.  258,  2  S.  E.  19;  Slater  v.  Railway  Co.,  29  S.  C.  96,  6  S.  E.  936; 
Grieve  v.  Railway  Co.,  104  Iowa,  659,  74  N.  W.  192;  Texas  &  P.  Ry.  Co.  v. 
Payne  (Tex.  Civ.  App.)  38  S.  W.  366;  Georgia  Railroad  &  Banking  Co.  v. 
Keener,  93  Ga.  808,  21  S.  E.  287;  George  v.  Railway  Co.,  57  Mo.  App.  358; 
The  Majestic,  166  U.  S.  375,  17  Sup.  Ct.  597. 

s  Witting  v.  Railway  Co.,  101  Mo.  631,  14  S.  W.  743;  Davis  v.  Railway  Co., 
89  Mo.  340,  1  S.  W.  327;  Read  v.  Railroad  Co.,  60  Mo.  199  (cf.  Hill  v.  Sturgeon, 
28  Mo.  323);  Steers  v.  Steamship  Co.,  57  N.  Y.  1;  Lamb  v.  Transportation  Co., 
46  X.  Y.  271;  Cochrau  v.  Dinsmore,  49  N.  Y.  249;  Patterson  v.  Clyde,  67  Pa, 
St.  500;  Colton  v.  Railroad  Co.,  67  Pa.  St.  211;  Faruham  v.  Railroad  Co.,  55 
Pa.  St.  53;  Goldey  v.  Railroad  Co.,  30  Pa.  St.  242  (cf.  Pennsylvania  R.  Co.  v. 
Miller,  87  Pa.  St.  395;  Hays  v.  Kennedy,  41  Pa.  St.  378;  Whitesides  v.  Rus- 
sell, 8  Watts  &  S.  [Pa.]  44);  Little  Rock,  M.  R.  &  T.  R.  Co.  v.  Corcoran, 
40  Ark.  375;  Little  Rock,  M.  R.  &  T.  R.  Co.  v.  Harper,  44  Ark.  208;  Kan- 
sas Pac.  Ry.  Co.  v.  Reynolds,  8  Kan.  623;  Kallman  v.  Express  Co.,  3  Kan. 
205;  Kelham  v.  The  Kensington,  24  La.  Ann.  100;  Smith  v.  Railroad  Co.,  64 
N.  C.  235;  Hubbard  v.  Express  Co.,  10  R.  I.  244;  Louisville  &  N.  R.  Co.  v. 
Manchester  Mills,  88  Tenn.  653,  14  S.  W.  314;  Memphis  &  C.  R.  Co.  v. 
Reeves,  10  Wall.  176;  Western  Transp.  Co.  v.  Downer,  11  Wall.  129;  Christie 
v.  The  Craigton,  41  Fed.  62;  Reed  v.  Steamboat  Co.,  1  Marv.  193,  40  Atl.  955. 


220  CARRIERS    OF    GOODS.  (Ch.   0- 

ed  peril,  but  that  he  exercised  reasonable  care  and  skill  in  the  cir- 
cumstances.9 Whatever  may  be  the  weight  of  authority  regarding 
the  burden  of  proof  on  this  point,  it  is  undisputed  that  even  when  the 
carrier  is  not  an  insurer  he  is  bound  to  exercise  ordinary  care  to  carry 
safely  and  securely.10  What  is  ordinary  care  in  the  various  excepted 
perils,  will  be  discussed  later. 

Reason  of  Rule. 

"The  law  charges  this  person  [the  common  carrier]  thus  intrusted 
to  carry  goods  against  all  events  but  acts  of  God  and  of  the  enemies 
of  the  king.  For,  though  the  force  be  never  so  great> — as  if  an  ir- 
resistible multitude  of  people  should  rob  him, — nevertheless  he  is 
chargeable.  And  this  is  a  politic  establishment,  contrived  by  the 
policy  of  the  law,  for  the  safety  of  all  persons,  the  necessity  of  whose 
affairs  oblige  them  to  trust  these  sorts  of  persons,  that  they  may  be 
safe  in  their  ways  of  dealing;  for  else  these  carriers  might  have  an 
opportunity  of  undoing  all  persons  that  had  any  dealings  with  them, 
or  combining  with  thieves,  etc.,  and  yet  doing  it  in  such  a  clandestine 
manner  as  would  not  be  possible  to  be  discovered.  And  this  is  the 
reason  the  law  is  founded  upon  in  that  point."  1X 

"When  goods  are  delivered  to  a  carrier,  they  are  usually  no  longer 
under  the  eye  of  the  owner.  He  seldom  follows  or  sends  any  servant 
with  them  to  the  place  of  their  destination.  If  they  should  be  lost  or 
injured  by  the  grossest  negligence  of  the  carrier  or  his  servants,  or 
stolen  by  them,  or  by  thieves  in  collusion  with  them,  the  owner 
would  be  unable  to  prove  either  of  these  causes  of  loss.  His  wit- 

»  South  &  N.  A.  R.  Co.  v.  Henlein,  52  Ala.  606;  Steele  v.  Townsend,  37  Ala. 
247;  Berry  v.  Cooper,  28  Ga.  543;  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Moss,  60 
Miss.  1003;  Same  v.  Abels,  Id.  1017;  Gaines  v.  Insurance  Co.,  28  Ohio  St.  418; 
United  States  Exp.  Co.  v.  Backman,  Id.  144;  Graham  v.  Davis,  4  Ohio  St.  362; 
Union  Exp.  Co.  v.  Graham,  26  Ohio  St.  595;  Slater  v.  Railway  Co.,  29  S.  C. 
96,  6  S.  E.  936;  Swindler  y.  Milliard,  2  Rich.  Law  (S.  C.)  286;  Baker  v. 
Brinson,  9  Rich.  Law  (S.  C.)  201;  Missouri  Pac.  Ry.  Co.  v.  Manufacturing  Co., 
79  Tex.  26,  14  S.  W.  785;  Ryan  v.  Railway  Co.,  65  Tex.  13;  Brown  v.  Ex- 
press Co.,  15  W.  Va.  812;  Shriver  v.  Railroad  Co.,  24  Minn.  506;  Chicago,  B. 
&  Q.  R.  Co.  v.  Manning,  23  Neb.  552,  37  N.  W.  462. 

10  Marshall  v.  Railroad  Co.,  11  C.  B.  655,  665,  note;   Gill  v.  Railroad  Co.r  42 
Law  J.  Q.  B.  89;    Jackson  Architectural  Iron  Works  v.  Hurlbut,  158  N.  Y. 
34,  52  N.  E.  665;    Hinton  v.  Railway  Co.  (Minn.)  75  N.  W.  373;    Faucher  v. 
Wilson  (N.  H.)  38  Atl.  1002. 

11  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  918. 


§    83)  LIABILITY    FOR    LOSS    OR    DAMAGE.  221 

nesses  must  be  the  carrier's  servants,  and  they,  knowing  they  could 
not  be  contradicted,  would  excuse  their  masters  and  themselves. 
To  give  due  security  to  property,  the  law  has  added  to  that  responsi- 
bility of  a  carrier  which  immediately  rises  out  of  his  contract  to  carry 
for  a  reward — namely,  that  of  taking  all  reasonable  care  of  it — the 
responsibility  of  an  insurer.  From  his  liability  as  an  insurer  the 
•carrier  is  only  to  be  relieved  by  two  things,  both  so  well  known  to 
all  the  country,  when  they  happen,  that  no  person  would  be  so  rash 
as  to  attempt  to  prove  that  they  had  happened  when  they  had  not, 
namely,  the  act  of  God  and  the  king's  enemies."  12 

Excepted  Risks —  Generally. 

The  exercise  of  ordinary  care  in  a  given  set  of  circumstances  is 
always  a  duty,  and  the  breach  of  such  a  duty,  followed  by  damage,  is 
negligence.  In  the  emergency,  therefore,  of  any  of  the  risks  before 
mentioned,  which  except  the  carrier  from  his  extraordinary  liability 
iis  insurer,  he  is  not  entirely  relieved  from  responsibility,  but  must 
still  exercise  due  diligence,  and  use  all  available  means,  to  protect 
the  goods  from  loss  or  damage.13  Failure  on  the  part  of  the  carrier 
to  exercise  such  diligence  in  the  face  of  the  excepted  risk  is  negli- 
gence; and  if  this  negligence  directly  caused,  or  in  connection  with 
the  excepted  risk  contributed  to  cause,  the  injury  complained  of,  he 
is  liable.14  Moreover,  it  is  the  duty  of  the  carrier  to  use  reasonable 
•care  to  guard  against  all  risks,  including  the  excepted  ones;  and  if, 
failing  to  take  reasonable  precautions,  the  goods  are  damaged  by  rea- 
son of  the  excepted  peril,  the  negligence  is  regarded  as  the  proximate 

12  Riley  v.  Home,  5  Bing.  217. 

is  Marshall  v.  Railway  Co.,  11  C.  B.  655,  665,  note;  Miller  v.  Railway  Co., 
1  Mo.  App.  Rep'r,  474;  Gill  v.  Railroad  Co.,  42  Law  J.  Q.  B.  89. 

I*  Craig  v.  Cbildress,  Peck  (Tenn.)  270;  Day  v.  Ridley,  16  Vt.  48.  But  the 
-care  need  be  only  reasonable.  Nashville  &  C.  R.  Co.  v.  David,  6  Heisk.  (Tenu.) 
261;  Morrison  v.  Davis,  20  Pa.  St.  171;  Railroad  Co.  v.  Reeves,  10  Wall.  176; 
Black  v.  Railroad  Co.,  30  Neb.  197,  46  N.  W.  428;  Gillespie  v.  Railway  Co., 
6  Mo.  App.  554;  Nugent  v.  Smith,  1  C.  P.  Div.  423;  The  Generous,  2  Dod. 
322.  But  see  The  Niagara  v.  Cordes,  21  How.  7;  King  v.  Shepherd,  3  Story, 
349,  Fed.  Cas.  No.  7,804.  See,  also,  Smith  v.  Railway  Co.,  91  Ala.  455,  8  South. 
754;  Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  94  U.  S.  469;  Blythe  v.  Railway 
Co.,  15  Colo.  333,  25  Pae.  702;  Baltimore  &  O.  R.  Co.  v.  Sulphur  Spring  Inde- 
pendent School  Dist,  96  Pa.  St.  65;  Denny  v.  Railroad  Co.,  13  Gray  (Mass.) 
481. 


222  CARRIERS    OF    GOODS.  (Ch.  6 

cause  of  the  injury,  and  the  carrier  is  liable.15  Therefore  the  carrier 
may  not  ship  the  goods  in  an  unseaworthy  vessel,16  or  attempt  to 
cross  a  stream  with  an  insufficient  team,17  or  when  a  dangerous  wind 
was  blowing/8  and  defend  against  resulting  loss  by  claiming  that  it 
was  caused  by  the  act  of  God.19 

Ordinarily,  as  we  have  seen,  the  responsibility  of  the  carrier  is  that 
of  an  insurer ;  otherwise,  in  the  case  of  excepted  risks,  his  liability  is 
identical  with  that  of  the  ordinary  bailee  for  hire, — he  must  exercise 
the  degree  of  diligence  required  by  law  to  protect  the  goods  intrusted 
to  him  from  injury  resulting  from  conditions  which,  in  the  exercise 
of  ordinary  care,  might  be  ameliorated  or  averted.20  In  this  aspect 
of  his  liability  as  a  bailee,  the  carrier  does  not  become  liable  for 
causes  which,  from  their  nature,  cannot  be  known  or  averted.  But 
it  is  his  duty,  from  an  inspection  of  bills  of  lading  or  otherwise,  to 
acquaint  himself  with  the  character  of  the  goods,  and  furnish  the  care 
and  protection  which  their  nature  requires.21  Live  animals  must  be 

15  Wolf  v.  Express  Co.,  43  Mo.  421;  Pruitt  v.  Railroad  Co.,  62  Mo.  r.JT; 
Davis  v.  Eailway  Co.,  89  Mo.  340,  1  S.  W.  327;  Elliott  v.  Rossell,  10  Johns. 
(X.  Y.)  1;  Thomas  v.  Lancaster  Mills,  19  C.  C.  A.  88,  71  Fed.  481;  Richmond  & 
D.  R.  Co.  v.  White,  88  Ga.  805,  15  S.  E.  802;  Lang  v.  Railroad  Co.,  154  Pa.  St. 
342,  26  Atl.  370. 

IB  Bell  v.  Reed,  4  Bin.  (Pa.)  127. 

IT  Campbel  v.  Morse,  1  Harp.  (S.  C.)  468. 

is  Cook  v.  Gourdin,  2  Nott  &  McC.  (S.  C.)  19. 

i»  Williams  v.  Grant,  1  Conn.  487;  Klauber  v.  Express  Co.,  21  Wis.  21;  Cook 
v.  Gourdin,  2  Nott  &  McC.  (S.  C.)  19;  United  States  Exp.  Co.  v.  Kountze,  8  Wall. 
342;  Savannah,  F.  &  W.  Ry.  Co.  v.  Guano  Co.  (Ga.)  30  S.  E.  555. 

20  Bird  v.  Cromwell,  1  Mo.  81;   Chouteaux  v.  Leech,  18  Pa.  St.  224;   Chicago 
&  A.  R.  Co.  v.  Davis,  159  111.  53,  42  N.  E.  382;    Notara  v.  Henderson,  L.  R. 

5  Q.  B.  346,  L.  R.  7  Q.  B.  225.    Applying  water  to  hogs  to  prevent  overheat- 
ing.    Illinois  Cent.  R.  Co.  v.  Adams,  42  111.  474;    Toledo,  W.  &  W.  R.  Co.  v. 
Thompson,  71  111.  434;  Toledo,  W.  &  W.  Ry.  Co.  v.  Hamilton,  76  111.  393.     See, 
also,  The  Niagara  v.  Cordes,  21  How.  7;  American  Exp.  Co.  v.  Smith,  33  Ohio 
St.  511.     But  a  carrier  is  not  bound  to  interrupt  his  voyage  to  preserve  goods. 
The  Lynx  v.  King,  12  Mo.  272. 

21  Butter  shipped  in  warm  weather  must  be  protected  from  heat.     Beard  v. 
Railway  Co.,  79  Iowa,  518,  44  N.  W.  800  (citing  Hewett  v.  Railway  Co.,  63 
Iowa,  611,  19  N.  W.  790;    Sager  v.  Railroad  Co.,  31  Me.  228;    Hawkins  v. 
Railroad  Co.,  17  Mich.  57,  18  Mich.  427;   Ogdensburg  &  L.  C.  R.  Co.  v.  Pratt, 
22  Wall.  123;   Wing  v.  Railroad  Co.,  1  Hilt.  [N.  Y.]  641;   Merchants'  Dispatch 

6  Transportation  Co.  v.  Cornforth,  3  Colo.  280;    Boscowitz  v.  Express  Co., 


§    83)  LIABILITY    FOR    LOSS    OR    DAMAGE.  223- 

supplied  with  water,  and  fruits  must  be  protected  from  frost.22  Al- 
though, by  the  contract,  the  carrier  is  exempted  from  liability  for 
loss  bj*  fire,  he  will  nevertheless  be  responsible  for  damage  to  the- 
goods  from  sparks,  occurring  through  his  negligence  in  failing  to 
equip  his  engine  with  a  proper  spark  arrester.23  The  vehicles  must 
be  reasonably  suited  for  the  conveyance  of  particular  classes  of 
goods,24  and  the  cars  or  other  vehicles,  even  if  they  are  the  property 
of  another  carrier,  must  be  reasonably  secure  and  strong.25  The  car- 
rier must  not  mingle  goods,  if  their  character  is  known  to  him,  cal- 
culated to  do  injury  one  to  another, — as  flour  and  turpentine,26  cloths 
and  acids.27  He  must  use  reasonable  diligence  in  checking  waste 
or  damage  during  transit,  of  which  he  either  knew,  or,  in  the  exer- 
cise of  ordinary  care,  should  have  known, — as  leakage  of  a  cask,28  or 
the  deterioration  of  perishable  goods  through  lack  of  ventilation.29 

93  111.  523;  Steinweg  v.  Railway  Co.,  43  N.  Y.  123);  Alabama  &  V.  R.  Co.  v. 
Searles,  71  Miss.  744,  16  South.  255;  Helliwell  v.  Railway  Co.,  7  Fed.  68;  Peck 
v.  Weeks,  34  Conn.  145;  Sherman  v.  Steamship  Co.,  26  Hun,  107. 

22  Merchants'  Dispatch  &  Transportation  Co.  v.  Cornforth,  3  Colo.  280.     Per 
contra,  where  the  shipper  selects  the  vehicle,  Carr  v.  Schafer,  15  Colo.  48,  24 
Pac.  873;   Tucker  v.  Railroad  Co.,  11  Misc.  Rep.  366,  32  N.  Y.  Supp.  1. 

23  Steinweg  v.  Railway  Co.,  43  N.  Y.  123;    Maxwell  v.  Railroad  Co.,  48  La. 
Ann.  385,  19  South.  287. 

24  Shaw  v.  Railway  Co.,  18  Law  J.  Q.  B.  181,  13  Q.  B.  347;    Root  v.  Rail- 
road Co.,  S3  Hun,  111,  31  N.  Y.  Supp.  357.     If  a  package  is  too  large  to  be  car- 
ried in  a  closed  car,  it  is  not  negligence  to  carry  it  on  an  open  one,  provided 
reasonable  care  is  used  to  protect  it  from  the  weather.     Burwell  v.  Railroad 
Co.,  94  N.  C.  451. 

25  Combe  v.   Railroad   Co.,   31  Law  T.    (X.    S.)    613;    Amies   v.   Stevens,    1 
Strange,  128;   Blower  v.  Railway  Co.,  L.  R.  7  C.  P.  655. 

26  The  Colonel  Ledyard,  1  Spr.  530,  Fed.  Cas.  No.  3.027. 

27  Alston  v.  Herring,  11  Exch.  822.     But,  if  the  goods  are  of  a  nature  likely 
to  be  injured  by  contact  with  others,  it  is  the  duty  of  the  shipper  to  notify  the 
carrier,  and,  if  he  fails  to  do  so,  the  latter  will  not  be  liable.     Hutchinson  v. 
Guion,  28  Law  J.  C.  P.  63,  5  C.  B.  (N.  S.)  149. 

23  Beck  v.  Evans,  16  East,  244.  And  see,  also,  Cox  v.  Railway  Co.;  3  Fost. 
&  F.  77;  Hunnewell  v.  Taber,  2  Spr.  1,  Fed.  Cas.  No.  6,880;  Cincinnati,  N.  O. 
&  T.  P.  Ry.  Co.  v.  N.  K.  Fairbanks  &  Co.,  33  C.  C.  A.  611,  90  Fed.  467;  Davis 
v.  Railroad  Co.,  66  Vt.  290,  29  Atl.  313. 

29  Davidson  v.  Gwynne,  12  East,  381.  See,  also,  Bird  v.  Cromwell,  1  Mo. 
81;  Chouteaux  v.  Leech,  18  Pa.  St.  224;  Densmore  Commission  Co.  v.  Duluth. 
S.  S.  &  A.  Ry.  Co.,  101  Wis.  563,  77  N.  W.  904;  Chicago  &  A.  R.  Co.  v.  Davis: 
159  111.  53,  42  N.  E.  382. 


224  CARRIERS    OF    GOODS.  (Cll.   6 

Deviation  and  Delay. 

Neither  can  the  carrier  plead  exemption  from  liability  by  reason 
of  the  act  of  God  or  other  excepted  peril,  if  he  has,  without  sufficient 
reason,  deviated  from  the  usual  or  agreed  route  of  travel;  in  such 
circumstances  his  liability  is  absolute,  regardless  of  the  cause  of 
loss.30  "This  absolute  liability  rests  on  the  proposition  that  the 
wrongful  deviation  amounts  to  a  conversion,  and  the  carrier  is  there- 
after liable  as  owner  until  the  original  owner  voluntarily  accepts  a 
return  of  the  goods."  31 

A  master  deviating  in  his  voyage  from  the  customary  course  was 
held  liable  for  loss  caused  by  tempest.32  Where  the  carrier  agreed 
to  carry  by  land,  but  sent  the  goods  by  water,  he  was  held  liable  for 
their  destruction  by  the  act  of  God.33  If  the  owner  of  a  designated 
line  of  boats  declines  to  receive  the  goods,  the  carrier  should  advise 
the  shipper  and  await  instructions; 3*  but  if  he  forwards  by  another 
line,  without  such  instructions  or  on  his  own  authority,  he  is  lia- 
ble.35 Nothing  short  of  actual  necessity  is  a  sufficient  reason  for  a 
deviation  from  the  customary  course,36  and  the  burden  is  upon  the 
carrier  to  prove  the  necessity.37 

It  is  held  by  some  writers  that  a  negligent  and  unreasonable  delay 
should  impose  on  the  carrier  a  liability  as  absolute  as  that  raised  by 
a  deviation  from  the  ordinary  route,  if  the  loss  can  be  traced  with 

30  Crosby  v.  Fitch,  12  Conn.  410;    Powers  v.  Davenport,  7  Blackf.   (Ind.) 
497;    Merchants'  Despatch  Transp.  Co.  v.  Kahn,  76  111.  520;    Louisville  &  N. 
R.  Co.  v.  Gidley  (Ala.)  24  South.  753;    International  &  G.  N.  R.  Co.  v.  Went- 
worth,  8  Tex.  Civ.  App.  5,  27  S.  W.  680;    Smith  v.  Railway  Co.,  91  Ala.  455, 
8  South.  754;   Davis  v.  Garrett,  6  Bing.  716. 

31  Hale,  Bailm.  &  Carr.  p.  360. 

32  Davis  v.  Garrett,  6  Bing.  716;   Powers  v.  Davenport,  7  Blackf.  (Ind.)  497; 
Phillips  v.  Brigham,  26  Ga.  617;    Lawrence  v.  McGregor,  Wright  N.  P.  (Ohio) 
193. 

33  Johnson  v.  Railroad  Co.,  33  N.  Y.  610;    Cox  v.  Foscue,  37  Ala.  505.     The 
carrier  must  follow  instructions  as  to  mode  of  conveyance,  Wilcox  v.  Parmelee, 
3  Sandf.  (N.  Y.)  610;    and  as  to  selection  of  carriers  beyond  his  own  route, 
Johnson  v.  Railroad  Co.,  33  N.  Y.  610. 

3*  Goodrich  v.  Thompson,  44  N.  Y.  324.     And  see  Fisk  v.  Newton,  1  Denio,  45. 

35  Johnson  v.  Railroad  Co.,  33  N.  Y.  610. 

36  Hand  v.  Baynes,  4  Whart.  (Pa.)  204;    Johnson  v.  Railroad  Co.,  33  N.  Y. 
610. 

ST  Le  Sage  v.  Railway  Co.,  1  Daly  (N.  Y.)  306. 


§  84)  ACT  OF  GOD  OR  PUBLIC  ENEMY.  225 

any  degree  of  certainty  to  the  fault  of  unreasonable  delay,38  and  this 
is  substantially  the  ruling  of  the  courts  of  New  York.39  The  more 
rational  principle,  supported  by  the  greater  weight  of  authority, 
would  seem  to  be  that  the  carrier  should  not  be  held  liable  for  the 
loss  unless  it  occurred  as  a  natural  and  foreseeable  consequence  of 
the  delay.40 

SAME— ACT  OF  GOD  OR  PUBLIC  ENEMY. 

84.  When  the  loss  or  damage  is  caused  by  what,  in  legal 
phraseology,  is  known  as  the  "act  of  God  or  the 
public  enemy,"  the  liability  of  the  carrier  as  insurer 
does  not  attach. 

When  the  loss  or  damage  is  caused  by  the  act  of  God,  the  duty  of 
the  carrier  is  performed  by  the  exercise  of  the  degree  of  care  re- 
quired of  the  ordinary  bailee  for  hire.1  The  only  difficulty  to  be  met 
with  in  the  consideration  of  this  principle,,  either  among  the  text 
writers  or  the  decisions,  is  its  application.  Some  writers  hold  that 
the  occurrence  falls  within  the  definition  provided  the  carrier  is  with- 
out fault  and  no  human  agency  is  connected  with  the  occurrence; 2 
while  others  insist  that  the  action  of  nature  must  be  essentially  vio- 

ss  Browne,  Can.  §  98;   Hutch.  Carr.  §§  199,  200. 

39  Read  v.   Spaulding,  30  N.   Y.   630;    Michaels   v.   Railroad   Co.,   Id.   564; 
Condict  v.  Railway  Co.,  54  X.  Y.  500;  Dunson  v.  Railroad  Co.,  3  Lans.  (N.  Y.) 
265.     See,  also,  Hewett  v.  Railway  Co.,  63  Iowa.  Oil,  19  N.  W.  790;   Read  v. 
Railroad  Co.,  60  Mo.  199;    McGraw  v.  Railroad  Co.,  18  W.  Va.  361;    Pruitt  v. 
Railroad  Co.,  62  Mo.  527;   Michigan  Cent.  R.  Co.  v.  Curtis,  80  HI.  324;    South- 
ern Exp.  Co.  v.  Womack,  1  Heisk.  (Tenn.)  256. 

40  Memphis  &  C.  R.  Co.  v.  Reeves,  10  Wall.  176;   Morrison  v.  Davis,  20  Pa. 
St.  171;    Denny  v.  Railroad  Co.,  13  Gray  (Mass.)  481;    Hoadley  v.  Transporta- 
tion Co.,  115  Mass.  304;    and  see  Jones  v.  Gilmore,  91  Pa.  St.  310,  314;    St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Bland  (Tex.  Civ.  App.)  34  S.  W.  675;    Palmer  v. 
Railroad  Co.,  101  Cal.  187,  35  Pac.  630;    Missouri  Pac.  Ry.  Co.  v.  Levi  (Tex. 
App.)  14  S.  W.  1062;   Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Gatewood,  79  Tex.  89,  14  S. 
W.  913;   Black  v.  Railroad  Co.,  30  Neb.  197,  46  N.  W.  428;    Blythe  v.  Railway 
Co.,  15  Colo.  333,  25  Pac.  702. 

§  84.    i  Ante,  p.  222. 

2  Hutch.  Carr.  §  175;    Story,  Bailrn.  §§  489,  490.  511;    2  Kent,  Comm.  597. 
See  criticism  of  Colt  v.  McMechen,  6  Johns.  160,  in  American  notes  to  Coggs 
v.  Bernard,  1  Smith,  Lead.  Cas.  317. 
BAR.NEG.— 15 


226  CARRIERS    OF   GOODS.  (Ch.  6 

lent3  But  the  question  of  violence  would  seem  to  be  entirely  im- 
material, except  that  it  might  have  importance  in  determining  the 
care  or  negligence  of  the  carrier  in  the  circumstances.4  Moderate 
disturbances  of  the  elements  are  of  common  occurrence,  and  their 
possible  happening  should  be  taken  into  consideration  by  the  car- 
rier in  providing  for  the  safety  of  the  goods.  Losses  happening  in 
such  circumstances  would  naturally  be  attributed  to  the  failure  of 
the  carrier  to  guard  against  them,  rather  than  to  the  elemental  na- 
ture of  the  occurrence.5  Again,  the  true  test  is  said  to  be  the  en- 
tire absence  of  any  human  agency  in  producing  the  loss.6  But  this 
is  far  from  satisfactory;  for,  as  has  just  been  intimated,  the  violence 
and  nature  of  the  disturbance  must  be  considered  in  determining 
whether  the  carrier  should  not,  in  the  exercise  of  due  diligence,  have 
anticipated  and  provided  against  a  disturbance  of  like  severity  and 
frequency;  and,  if  due  diligence  and  foresight  could  have  anticipat- 
ed and  prevented  the  loss,  it  follows  that  human  agency  was  the  legal 
producing  cause.  The  only  rational  solution  of  the  matter  would 
seem  to  lie  in  a  consideration  of  the  circumstances  surrounding  each 
case,  due  regard  being  had  for  prevailing,  known  conditions  and  gen- 
eral experience  in  similar  matters. 

In  the  circumstances  of  the  various  cases,  the  following  causes 
have  been  held  to  be  the  act  of  God :  Lightning;7  tempest;8  earth- 
quake;9 extraordinary  flood;10  a  sudden  gust11  or  a  severe  gale 

• 

3  Lawson,  Bailm.  §  120;   Hutch.  Carr.  §  176. 

*  Schouler,  Bailm.  p.  391. 

5  Ante,  p.  221. 

«  Hale,  Bailm.  &  Carr.  p.  357;  Merritt  v.  Earle,  29  N.  Y.  115;  McArthur  v. 
Sears,  21  Wend.  (N.  Y.)  190;  Ewart  v.  Street,  2  Bailey  (S.  C.)  157;  Backhouse 
r.  Sneed,  5  N.  C.  173;  Trent  Nav.  Co.  v.  Ward,  3  Esp.  127. 

7  Forward  v.  Pittard,  1  Term  R.  27,  33. 

s  Gillett  v.  Ellis,  11  111.  579. 

»  Slater  v.  Railway  Co.,  29  S.  C.  96,  6  S.  E.  936. 

10  Levering  v.  Coal  Co.,  54  Pa.  St.  291;    Nashville  &  C.  R.  Co.  v.  David,  6 
Heisk.  (Tenn.)  261;   Davis  v.  Railway  Co.,  89  Mo.  340,  1  S.  W.  327;    Norris  v. 
Railway  Co.,  23  Fla.  182,  1  South.  475;    Smith  v.  Railway  Co.,  91  Ala.  455,  8 
South.  754;   Wald  v.  Railroad  Co.,  1(52  111.  545,  44  N.  E.  888;   International  & 
G.  N.  R.  Co.  v.  Wentworth  (Tex.  Civ.  App.)  27  S.  W.  680.     A  flood  such  as  has 

11  Germania  Ins.  Co.  v.  The  Lady  Pike,  8  Am.  Law  Reg.  (N.  S.)  614,  Fed. 
Cas.  No.  7,985. 


§    84)  ACT    OF    GOD    OR    PUBLIC    ENEMY.  22T 

of  wind;12  the  sudden  cessation  of  win:!:13  snowstorms;14  the- 
breaking  of  a  dam;15  freezing  of  navigable  waters;16  the  freezing 
of  fruit  trees  in  transit; 1T  a  hidden,  unknown  rock; 18  a  snag  lodged 
by  a  freshet  in  a  river.19  If  the  carrier  is  negligent  in  failing  to 
avoid  the  peril,  the  loss  cannot  be  ascribed  to  the  act  of  God.20  On. 
the  other  hand,  and  in  some  instances  inconsistently  with  the  fore- 
going cases,  losses  caused  by  fire  not  originating  from  lightning,21' 
the  explosion  of  a  boiler,22  collision,23  heat,24  hidden  obstructions  to 
navigation,25  and  the  shifting  of  a  buoy,26  have  been  held  not  to  be 
caused  by  the  act  of  God. 

occurred  but  twice  in  a  generation  is  an  act  of  God.  Pearce  v.  The  Thomas- 
Newton,  41  Fed.  106. 

12  Blythe  v.  Railway  Co.,  15  Colo.  333,  25  Pac.  702.  And  see  Miltimore  Y. 
Railway  Co.,  37  Wis.  190;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Compton  (Tex.  Civ.  App.>^ 
38  S.  W.  220. 

is  Colt  v.  McMechen,  6  Johns.  160. 

14  Black  v.  Railroad  Co.,  30  Neb.  197,  46  N.  W.  428;  Feinberg  v.  Railroad;' 
Co.,  52  N.  J.  Law,  451,  20  Atl.  33;  Chapin  v.  Railway  Co.,  79  Iowa,  582,  4* 
N.  W.  820;  Palmer  v.  Railroad  Co.,  101  Cal.  187,  35  Pac.  630. 

is  Long  v.  Railroad  Co.,  147  Pa.  St.  343,  23  Atl.  459  (the  Johnstown  flood: 
of  1889). 

IB  Bowman  v.  Teall,  23  Wend.  (N.  Y.)  306;  Parsons  v.  Hardy,  14  Wend. 
(N.  Y.)  215;  Worth  v.  Edmonds,  52  Barb.  (N.  Y.)  40;  West  v.  The  Berlin,  £- 
Iowa,  532. 

IT  Vail  v.  Railroad  Co.,  63  Mo.  230. 

is  Williams  v.  Grant,  1  Conn.  487;  otherwise,  if  laid  down  in  a  chart,  Penne- 
will  v.  Cullen,  5  Har.  (Del.)  238. 

is  Sinyrl  v.  Niolon,  2  Bailey  (S.  C.)  421. 

20  Norris  v.  Railway  Co.,  23  Fla.  182,  1  South.  475;    Missouri,  K.  &  T.  Ry. 
Co.  v.  Olive  (Tex.  Civ.  App.)  23  S.  W.  526. 

21  Forward  v.  Pittard,  1  Term  R.  27,  33;   Condict  v.  Railway  Co.,  54  N.  Y~ 
500;    Miller  v.  Navigation  Co.,  10  N.  Y.  431;    Parsons  v.  Monteath,  13  Barb^ 
(N.  Y.)  353;  Patton's  Adm'rs  v.  Magrath,  Dud.  (S.  C.)  159;  Gilmore  v.  Carman,. 
1  Smedes  &  M.  (Miss.)  279;   Moore  v.  Railroad  Co.,  3  Mich.  23;    Cox  v.  Peter- 
son, 30  Ala,  608;  Hyde  v.  Navigation  Co.,  5  Term  R.  389.     Per  contra,  Chicago 
&  N.  W.  R.  Co.  v.  Sawyer,  69  111.  285,  the  great  fire,  held  not  to  be  act  of  God_ 

22  The  Mohawk,  8  Wall.  153;    Bulkley  v.  Cotton  Co.,  24  How.  386. 

23  Mershon  v.  Hobensack,  21'  N.  J.  Law.  372;   Plaisted  v.  Navigation  Co.,  2T 
Me.  132. 

24  Beard  v.  Railway  Co.,  79  Iowa.  518,  44  N.  W.  800.  • 

25  New  Brunswick  Steamboat  &  Canal  Transp.  Co.  v.  Tiers,  24  N.  J.  Law, 
<J'J7;    Friend  v.  Woods,  G  Grat.  (Va.)  189. 

26  Reaves  v.  Waterman,  2  Speer  (S.  C.)  197. 


228  CARRIERS    OF    GOODS.  (Cli.    6 

Proximate  Cause. 

To  relieve  the  common  carrier  from  liability,  the  act  of  God  must 
have  been  the  proximate  cause  of  the  loss.27  If  any  agency,  other 
than  a  natural  one,  contributes  to  cause  the  loss,  it  is  not  imputable 
solely  to  the  act  of  God,  and  hence  it  follows  that  the  act  of  God 
relied  on  as  a  defense  must  be  shown  to  be  the  exclusive  cause  of  the 
loss.28  Thus,  if  a  vessel  sinks,  partly  by  reason  of  being  unsea- 
worthy  and  partly  by  reason  of  a  violent  wind,  the  carrier  will  be 
liable.29  So,  also,  where  a  steamer  came  in  collision  with  the  mast 
of  a  schooner  recently  sunk  by  a  severe  gale; 30  and,  where  a  boat 
undergoing  repairs  on  a  dry  dock  was  blown  into  the  water  by  a  sud- 
den gust  of  wind,  the  court  said:  "The  act  of  God  which  shook  the 
dock  from  under  the  vessel  was  not  the  immediate  cause  of  the  dam- 
ages. It  was  the  holes  in  the  vessel  admitting  torrents  of  water  as 
soon  as  it  touched  the  surface."  31 

A  mistaken  judgment,  although  occurring  in  the  exercise  of  a 
sound  discretion  and  prudence,  does  not  relieve  the  carrier  from  lia- 
bility. In  McArthur  v.  Sears,32  Cowen,  J.,  said:  "I  have  sought  in 
vain  for  any  case  to  excuse  the  loss  of  the  carrier,  where  it  arises 
from  human  action  or  neglect,  or  any  combination  of  such  action  or 
neglect,  except  force  exerted  by  a  public  enemy.  No  matter  what 
degree  of  prudence  may  be  exercised  by  the  carrier  and  his  servants, 
although  the  delusion  by  which  it  is  baffled  or  the  force  by  which  it  is 
overcome  be  inevitable,  yet,  if  it  be  the  result  of  human  means,  the 
carrier  is  responsible.  *  *  *  I  believe  it  is  matter  of  history 
that  inhabitants  of  remote  coasts,  accustomed  to  plunder  wrecked 

27  Merritt  v.  Earle,  29  N.  Y.  115;  Smith  v.  Shepherd,  Abb.  Shipp.  (13th  Ed.) 
p.  459;  New  Brunswick  Steamboat  &  Canal  Transp.  Co.  v.  Tiers,  24  N.  J.  Law, 
697. 

as  Packard  v.  Taylor,  35  Ark.  402;  Merritt  v.  Earle,  29  N.  Y.  115;  Michaels 
v.  Railroad  Co.,  30  N.  Y.  564;  King  v.  Shepherd,  3  Story,  349,  Fed.  Gas.  No. 
7,804;  Ewart  v.  Street,  2  Bailey  (S.  C.)  157;  Sprowl  v.  Kellar,  4  Stew.  &  P. 
(Ala.)  382;  Lang  v.  Railroad  Co.,  154  Pa.  St.  342,  26  Atl.  370;  Savannah,  F.  & 
W.  Ry.  Co.  v.  Guano  Co.  (Ga.)  30  S.  E.  555. 

29  Packard  v.  Taylor,  35  Ark.  402;   Bell  v.  Reed,  4  Bin.  (Pa.)  127. 

so  Merritt  v.  Earle,  29  N.  Y.  115.  And  see  Trent  Navigation  Co.  v.  Ward, 
3  Esp.  127. 

31  Packard  v.  Taylor,  35  Ark.  402. 

3221  Wend.  (N.  Y.)  190. 


§    84)  ACT    OF    GOD    OR    PUBLIC    ENEMY.  22$ 

vessels,  have  sometimes  resorted  to  the  expedient  of  luring  benighted 
mariners,  by  false  lights,  to  a  rocky  shore.  Even  such  a  harrowing 
combination  of  fraud  and  robbery  would  form  no  excuse.  *  *  * 
The  difficulty  returns,  therefore;  if  we  receive  the  immediate  agency 
of  third  persons  in  any  shape,  we  open  that  very  door  for  collusion 
which  has  denied  an  excuse  by  reason  of  theft,  robbery,  and  fire." 

The  Public  Enemy. 

The  common  carrier  is  not  an  insurer  against  losses  caused  by  the 
acts  of  the  public  enemy.  The  "public  enemy,"  in  its  legal  signifi- 
cance, is  an  organized  military  force,  moving  against  the  sovereign- 
power  of  the  carrier's  country.  Hence  a  common  carrier  will  not 
be  exempt  from  liability  for  losses  caused  by  a  mere  insurrection,3* 
unless  it  assumes  the  proportions  of  a  civil  war.3*  Neither  do  the 
acts  of  thieves,  robbers,  strikers,  or  rioters  fall  within  the  excep- 
tion.35 Nor  do  the  acts  of  soldiers  in  the  regular  army,  if  they  are 
acting  willfully  and  unlawfully,  and  not  in  the  discharge  of  their  reg- 
ular duty.36  If  actual  hostilities  exist,  it  is  not  essential  that  there 

SB  Missouri  Pac.  Ry.  Co.  v.  Nevill,  60  Ark.  375,  30  S.  W.  425;  Forward  v. 
Pittard,  1  Term  R.  27,  29.  But  see  Nesbitt  v.  Lushington,  4  Term  R.  783; 
Missouri  Pac.  Ry.  Co.  v.  Nevill,  GO  Ark.  375,  30  S.  W.  425. 

S*  Mauran  v.  Insurance  Co.,  6  Wall.  1;  Nashville  &  C.  R.  Co.  v.  Estes,  10 
Lea,  749;* The  Prize  Cases,  2  Black,  635;  Hubbard  v.  Express  Co.,  10  R.  I. 
244;  Lewis  v.  Ludwick,  6  Cold.  (Tenn.)  368.  In  the  recent  Civil  War  the 
Confederate  forces  were  neither  robbers  on  land  nor  pirates  by  sea.  Fifield 
v.  Insurance  Co.,  47  Pa.  St.  166;  Mauran  v.  Insurance  Co.,  6  Wall.  1.  Per 
contra,  Dole  v.  Insurance  Co.,  51  Me.  465. 

35  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  918;  The  Belfast  v.  Boon,  41  Ala.  50; 
Boon  v.  The  Belfast,  40  Ala.  184;  Lewis  v.  Ludwick,  6  Cold.  (Tenn.)  368; 
Schieffelin  v.  Harvey,  6  Johns.  (N.  Y.)  170;  Watkinson  v.  Laughton,  8  Johns. 
(N.  Y.)  213;  Morse  v.  Slue,  1  Vent.  190.  Indians  on  the  warpath  are  public- 
enemies.  Holladay  v.  Kennard,  12  Wall.  254.  Strikers  are  not  a  public 
enemy,  Missouri  Pac.  Ry.  Co.  v.  Nevill,  60  Ark.  375,  30  S.  W.  425;  but  their 
interference  may  excuse  delay,  Geismer  v.  Railway  Co.,  102  N.  Y.  563,  7  N.  E. 
828;  Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Hazen,  84  111.  36;  Lake  Shore  &  M.  S. 
Ry.  Co.  v.  Bennett,  89  Ind.  437;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Hollowell, 
65  Ind.  188;  Haas  v.  Railroad  Co.,  81  Ga.  792,  7  S.  E.  629;  Gulf,  C.  &  S.  F. 
Ry.  Co.  v.  Levi,  76  Tex.  337,  13  S.  W.  191;  Missouri  Pac.  Ry.  Co.  v.  Same  (Tex. 
App.)  14  S.  W.  1062;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Gatewood,  79  Tex.  89,  14  S. 
W.  913;  Southern  Exp.  Co.  v.  Glenn,  16  Lea  (Tenn.)  472,  1  S.  W.  102. 

se  Seligman  v.  Armijo,  1  N.  M.  459. 


230  CARRIERS    OF    GCODS.  (Ch.   6 

should  be  a  formal  declaration  of  war.87  Pirates,  although  nothing 
more  than  sea  robbers,  have  always  been  included  in  the  exception 
as  the  common  enemy  of  all  mankind.38 

Although  the  loss  is  caused  by  the  act  of  the  public  enemy,  this 
does  not  relieve  the  carrier  from  his  obligation  to  use  due  diligence 
in  escaping  capture  or  avoiding  injury  and  loss.39  And,  if  the  loss 

•  occurs  while  the  carrier  is  deviating  from  the  usual  course,  he  is  lia- 
ble therefor,  regardless  of  the  question  whether  it  was  caused  by  the 

-deviation  or  not.40  In  the  event  of  an  unreasonable  delay,  the  car- 
rier will  not  be  liable  for  a  loss  caused  by  the  public  enemy,  unless 
it  appears  that  such  loss  was  a  result  naturally  to  be  anticipated 

:from  the  delay.41 

SAME— ACT  OF  SHIPPER. 

."85.  Common  carriers  of  goods  are   not   insurers  against 
loss  or  damage  caused  by  the  act  of  the  shipper. 

'If  the  shipper,  by  any  act  or  by  any  species  of  deception,  misleads 
'the  carrier  as  to  the  true  nature  or  value  of  the  goods,  whereby  he  is 
led  to  exercise  a  care,  less  in  degree  or  different  in  kind  from  what 
lie  would  have  bestowed  had  he  been  informed  of  their  true  nature, 
and  the  goods  are  consequently  lost  or  damaged,  the  carrier  is  not 
liable.1  Thus,  where  an  attempt  was  made  to  defraud  the  carrier 
jof  his  just  compensation,  by  shipping  money  hid  in  the  midst  of  a 

•  «T  The  Prize  Cases,  2  Black,  635. 

«s  Hutch.  Carr.  §  205;  Lawson,  Bailm.  §  129;  Story,  Bailm.  §  526;  Picker- 
ing v.  Barkley,  Style,  132.  But  see  The  Belfast  v.  Boon,  41  Ala.  50. 

«»  Forward  v.  Pittard,  1  Term  R.  27;  Parker  v.  James,  4  Camp.  112;  Clark 
v.  Railroad  Co.,  39  Mo.  184;  Express  Co.  v.  Kountze,  8  Wall.  342, 

«o  Parker  v.  James,  4  Camp.  112. 

*i  Southern  Exp.  Co.  v.  Womack,  1  Heisk.  (Tenn.)  256;  Hollaclay  v.  Ken- 
nard,  12  Wall.  254. 

§  85.  i  Gorham  Mfg.  Co.  v.  Fargo,  45  How.  Prac.  90;  Camden  &  A.  R.  Co.  v. 
"Baldauf,  16  Pa.  St.  67;  Relf  v.  Rapp,  3  Watts  &  S.  (Pa.)  21;  Southern  Exp.  Co. 
v.  Crook,  44  Ala.  468;  New  York  Cent.  &  H.  R.  R.  Co.  v.  Fraloff,  100  U.  S. 
24;  Phillips  v.  Earle,  8  Pick.  (Mass.)  182;  Chicago  &  A.  R.  Co.  v.  Thompson, 
19  111.  578;  Magnin  v.  Dinsmore,  62  N.  Y.  35;  Earnest  v.  Express  Co.,  1 
Woods,  573,  Fed.  Cas.  No.  4,248;  Ocean  S.  S.  Co.  of  Savannah  v.  Way,  90 
•Ga.  747,  17  S.  E.  57;  Shackt  v.  Railroad  Co.,  94  Tenn.  658,  30  S.  W.  742. 


§    85)  ACT   OF    SHIPPER.  231 

bag  of  hay,  the  shipper  was  not  allowed  to  recover  for  its  loss.2  So, 
likewise,  where  a  diamond  ring  was  sent  in  a  small  paper  box,  tied 
up  with  a  string.3  And,  in  general,  it  is  true  that,  if  the  method 
of  packing  is  calculated  to  mislead  the  carrier  and  make  him  under- 
estimate the  value  of  the  goods,  it  is  not  material  that  actual  fraud 
should  be  intended  or  proved.4  The  evident  reason  for  this  is  that 
the  carrier  is  thereby  "thrown  off  his  guard,  and  neglects  to  give  the 
package  the  care  and  attention  which  he  would  have  given  it  had  he 
known  its  actual  value."  B 

A  hidden  defect  in  packing  the  goods,  whereby  they  are  subject 
to  injury  and  damage  in  the  ordinary  course  of  transportation,  in  a 
manner  unknown  to  the  carrier,  relieves  him  from  liability  for  a  loss 
thus  caused.6 

If  the  shipper  assumes  any  part  of  the  responsibility  connected 
with  the  transportation  of  the  goods,  either  by  express  direction  or 
by  act  of  interference  or  assumption  of  authority,  a  resulting  loss 
will  be  attributed  to  his,  and  not  the  carrier's,  negligence.7  Where 
the  shipper  of  a  horse  opened  a  window  in  the  box  car,  and  left  it 

2  Gibbon  v.  Paynton,  4  Burrows,  2298;  Southern  Exp.  Co.  v.  Everett,  37  Ga. 
688;  Phillips  v.  Earle,  8  Pick.  (Mass.)  182;  The  Ionic,  5  Blatchf.  538,  Fed. 
Cas.  No.  7,059;  Crouch  v.  Railway  Co.,  14  C.  B.  255;  Edwards  v.  Sherratt,  1 
East,  604;  Batson  v.  Donovan,  4  Barn.  &  Aid.  21. 

s  Everett  v.  Express  Co.,  46  Ga.  303. 

4  Warner  v.  Transportation  Co.,  5  Rob.  (N.  Y.)  490;  Orange  Co.  Bank  v. 
Brown,  9  Wend.  (N.  Y.)  85:  Pardee  v.  Drew,  25  Wend.  (N.  Y.)  459;  Chicago 
&  A.  R.  Co.  v.  Thompson,  19  111.  578;  Shackt  v.  Railroad  Co.,  94  Tenn.  658, 
30  S.  W.  742;  Great  Northern  Ry.  Co.  v.  Shepherd,  8  Exch.  30,  14  Eng.  Law 
&  Eq.  367. 

B  Hutch.  Carr.  §  213.  Where  a  box  contains  glass,  the  carrier  should  be 
informed  of  it.  American  Exp.  Co.  v.  Perkins,  42  111.  458.  And  generally, 
see  Hollister  v.  Nowlen,  19  Wend.  (N.  Y.)  234;  Hayes  v.  Wells,  Fargo  &  Co., 
23  Cal.  185;  St.  John  v.  Express  Co.,  1  Woods,  612,  Fed.  Cas.  No.  12,228. 

e  Klauber  v.  Express  Co.,  21  Wis.  21;  Goodman  v.  Navigation  Co.,  22  Or. 
14,  28  Pac.  894;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Holder,  10  Tex.  Civ.  App.  223, 
30  S.  W.  383.  But  see  The  Colonel  Ledyard,  1  Spr.  530,  Fed.  Cas.  No.  3,027. 
But,  to  relieve  the  carrier  from  liability,  the  loss  must  arise  from  the  improper 
packing.  Shriver  v.  Railroad  Co.,  24  Minn.  506. 

?  White  v.  Winnisirnruet  Co.,  7  Gush.  (Mass.)  155;  Wilson  v.  Hamilton,  4 
Ohio  St.  722;  Western  &  A.  R.  Co.  v.  Exposition  Cotton  Mills,  81  Ga.  522,  7 
S.  E.  916;  Miltirnore  v.  Railway  Co.,  37  Wis.  190;  Rixford  v.  Smith,  52  N.  H. 
355;  Ross  v.  Railroad  Co.,  49  Vt.  364;  Betts  v.  Trust  Co.,  21  Wis.  80;  East 


232  CARRIERS    OF    GOODS.  (Cll.   6 

open  without  the  knowledge  of  the  carrier,  the  latter  was  not  liable 
for  the  loss  of  the  horse,  which  jumped  through  the  window  and  was 
killed.8  So,  also,  if  he  furnishes  the  car 9  or  accompanies  the  goods 
under  an  agreement  to  care  for  them.10  Nor  is  the  carrier  liable  for 
the  miscarriage  1X  or  wrong  delivery  of  the  goods,12  if  the  shipper 
has  been  guilty  of  negligence  in  improperly  marking  their  destina- 
tion. 

SAME— AUTHORITY  OF   LAW. 

86.  Common    carriers    are    not  liable   for   loss   occurring 
through  the  lawful  exercise  of  public  authority. 

Whenever,  in  the  course  of  transportation,  the  carrier  is  compelled, 
under  the  paramount  authority  of  the  law,  to  yield  the  possession  of 
goods  to  its  officers,  he  cannot  be  held  liable  for  the  loss.1  It  was 
so  held  where,  in  the  exercise  of  police  powder,  goods  infected  with 
contagious  diseases  or  intoxicating  liquors  were  seized.2  If  the 
goods  are  taken  under  legal  process,  it  is  not  incumbent  on  the  car- 
rier to  ascertain  positively  the  validity  of  the  writ  before  surrendering 
the  possession;  it  is  sufficient  if  it  bears  the  ordinary  indicia  of 
validity.3  "Whatever  may  be  a  carrier's  duty  to  resist  a  forcible 

Tennessee,  V.  &  G.  R.  Co.  v.  Johnston,  75  Ala.  596;  Pennsylvania  Co.  v.  Ken- 
wood Bridge  Co.,  170  111.  645,  49  N.  E.  215. 

s  Hutchinson  v.  Railway  Co.,  37  Minn.  524,  35  N.  W.  433. 

» Illinois  Cent.  R.  Co.  v.  Hall,  58  111.  409;  or  other  appliances,  Loveland  v. 
Burke,  120  Mass.  139;  Ross  v.  Railroad  Co.,  49  Vt.  364. 

loGleason  v.  Transportation  Co.,  32  Wis.  85;  South  &  N.  A.  R.  Co.  v. 
Henlein,  52  Ala.  606;  McBeath  v.  Railway  Co.,  20  Mo.  App.  445. 

11  Congar  v.  Railroad  Co.,  24  Wis.  157;   The  Huntress,  2  Ware,  89  (Dav.  82), 
Fed.  Cas.  No.  6,914;   Erie  Ry.  Co.  v.  Wilcox,  84  111.  239;   Southern  Exp.  Co.  v. 
Kaufman,  12  Heisk.  (Tenn.)  161;  Finn  v.  Railroad  Corp.,  102  Mass.  283. 

12  Lake  Shore  &  M.  S.  R.  Co.  v.  Hodapp,  83  Pa.  St.  22. 

§  86.  i  Stiles  v.  Davis,  1  Black,  101;  Nashville  &  C.  R.  Co.  v.  Estes,  10  Lea 
(Tenn.)  749;  Indiana,  I.  &  I.  Ry.  Co.  v.  Doremeyer,  20  Ind.  App.  605,  50  N.  E. 
497. 

2  Wells  v.  Steamship  Co.,  4  Cliff.  228,  Fed.  Cas.  No.  17,401.  Game  unlaw- 
fully killed.  Thomas  v.  Express  Co.  (Minn.)  75  N.  W.  1120. 

s  Stiles  v.  Davis,  1  Black,  101;  Bliven  v.  Railroad  Co.,  36  N.  Y.  403;  Pin- 
gree  v.  Railroad  Co.,  66  Mich.  143,  33  N.  W.  298;  Furman  v.  Railroad  Co.,  57 
Iowa,  42,  10  N.  W.  272;  Id.,  62  Iowa,  395,  17  N.  W.  598;  Id.,  68  Iowa,  219, 
26  N.  W.  83;  Id.,  81  Iowa,  540,  46  N.  W.  1049;  Ohio  &  M.  Ry.  Co.  v.  Yohe, 


§  87)  INHERENT  NATURE  OF  GOODS.  233 

seizure  without  process,  he  cannot  be  compelled  to  assume  that  regu- 
lar process  is  illegal,  and  to  accept  all  the  consequences  of  resisting 
officers  of  the  law.  If  he  is  excusable  for  yielding  to  a  public  enemy, 
he  cannot  be  at  fault  for  yielding  to  actual  authority  what  he  may 
yield  to  usurped  authority."  4  Where  an  attachment  had  been  wrong- 
fully issued  against  goods  in  the  hands  of  the  carrier,  the  court  said: 
"It  is  true  that  these  goods  had  been  delivered  to  the  defendant  as 
carriers  by  the  plaintiffs,  to  be  conveyed  for  them  to  the  place  of  desti- 
nation, and  were  seized  under  an  attachment  against  third  persons; 
but  the  circumstance  did  not  impair  the  legal  effect  of  the  seizure  or 
custody  of  the  goods  under  it,  so  as  to  justify  the  defendant  in  taking 
them  out  of  the  hands  of  the  sheriff.  The  right  of  the  sheriff  to  hold 
them  was  a  question  of  law,  to  be  determined  by  the  proper  legal  pro- 
ceedings, and  not  at  the  will  of  the  defendant  nor  that  of  the  plain- 
tiffs." 6 

SAME— INHERENT  NATURE  OF  GOODS. 

87.  The  common  carrier  is  not  an  insurer  against  loss 
arising  from  the  inherent  nature,  vice,  defect,  or 
infirmity  of  the  goods,1  unless  his  negligence  has 
contributed  thereto.2 

51  Ind.  181;  French  v.  Transportation  Co.,  134  Mass.  288;  Jewett  v.  Olsen,  18 
Or.  419,  23  Pac.  262;  The  M.  M.  Chase,  37  Fed.  708;  Savannah,  G.  &  N.  A. 
R.  Co.  v.  Wilcox,  48  Ga.  432.  But  see  Bingham  v.  Lamping,  26  Pa.  St.  340; 
McAlister  v.  Railroad  Co.,  74  Mo.  351;  Mierson  v.  Hope,  2  Sweeny  (N.  Y.)  561; 
Bennett  v.  Express  Co.,  83  Me.  236,  22  Atl.  159. 

*  Per  Campbell,  C.  J.,  in  Pingree  v.  Railroad  Co.,  66  Mich.  143,  33  N.  W.  298. 

5  Stiles  v.  Davis,  1  Black,  101;   Frank  v.  Railroad  Co.,  9  Pa.  Super.  Ct.  129. 

§  87.  i  Hale,  Bailm.  &  Carr.  p.  368;  Story,  Bailm.  §  492a;  Hutch.  Carr. 
§  216a. 

2  Beard  v.  Railroad  Co.,  79  Iowa,  518,  44  N.  W.  800;  Harris  v.  Railroad  Co., 
20  N.  Y.  232;  Ohio  &  M.  R.  Co.  v.  Dunbar,  20  111.  624;  Welsh  v.  Railroad  Co., 
10  Ohio  St.  65;  Powell  v.  Railroad  Co.,  32  Pa.  St.  414;  Smith  v.  Railroad  Co., 
12  Allen  (Mass.)  531;  Conger  v.  Railroad  Co.,  6  Duer  (N.  Y.)  375;  and  as  to 
whether  perishable  property  must  be  given  preference  in  transportation,  Swet- 
land  v.  Railroad  Co.,  102  Mass.  276;  Peet  v.  Railroad  Co.,  20  Wis.  594;  Tier- 
ney  v.  Railroad  Co.,  76  N.  Y.  305;  Marshall  v.  Railroad  Co.,  45  Barb.  (N.  Y.> 
502. 


:234  CARRIERS  OF  GOODS.  (Ch.  6 

Thus,  the  carrier  is  not  liable  for  the  decay  of  fruits,  the  evapora- 
tion or  leakage  of  liquids,  and  like  deteriorations.3 

LIABILITY  FOR  DELAY. 

88.  In  the   absence   of  special   contract,  the   obligation  of 

the  common  carrier  is  merely  to  use  ordinary  dil- 
igence to  deliver  the  goods  within  a  reasonable 
time. 

89.  When  the  carrier  makes  a  specific  agreement  to  carry 

and  deliver  the  goods  within  a  limited  time,  the 
obligation  is  absolute. 

In  the  absence  of  special  agreement,  it  is  the  duty  of  the  carrier 
to  use  ordinary  care  to  avoid  delays  in  transportation  and  to  deliver 
the  goods  within  a  reasonable  time.1  It  follows  that  his  liability  for 
delay  in  transportation  is  determined  by  the  test  of  reasonable  care 
and  reasonable  time.  Even  if  the  delay  is  unreasonable,  the  owner 
is  still  bound  to  receive  the  goods  when  tendered  at  the  destination.2 
In  such  cases,  his  remedy  is  not  for  a  conversion,  but  for  damages, 
measured  by  the  loss  proximately  caused  by  the  delay.3 

s  Beard  v.  Railroad  Co.,  79  Iowa,  518,  44  N.  W.  800;  Gulf,  C.  &  S.  F.  Ry. 
Co.  v.  Levi,  76  Tex.  337,  13  S.  W.  191;  Cragin  v.  Railroad  Co.,  51  N.  Y.  Gl; 
Louisville,  N.  O.  &  T.  Ry.  Co.  v.  Bigger,  66  Miss.  319,  6  South.  234;  Illinois 
Cent.  R.  Co.  v.  Brelsford,  13  111.  App.  251;  The  Howard  v.  Wissman,  18  How. 
231;  The  Collenberg,  1  Black,  170;  Swetland  v.  Railroad  Co.,  102  Mass.  276; 
Warden  v.  Greer,  6  Watts  (Pa.)  424;  Powell  v.  Mills,  37  Miss.  691;  Evans  v. 
Railroad  Co.,  Ill  Mass.  142.  Thus,  of  peaches,  American  Exp.  Co.  v.  Smith, 
33  Ohio  St.  511,  31  Am.  Rep.  561,  and  note;  and  of  potatoes,  The  Howard  v. 
Wissman,  18  How.  231;  fermentation  of  molasses,  Warden  v.  Greer,  6  Watts 
(Pa.)  424;  Faucher  v.  Wilson  (N.  H.)  38  Atl.  1002. 

§§  88-89.  i  Scovill  v.  Griffith,  12  N.  Y.  509;  Michigan  Cent.  R.  Co.  v.  Bur- 
rows, 33  Mich.  6;  Empire  Transp.  Co.  v.  Wallace,  68  Pa.  St.  302;  Kinnick  v. 
Railroad  Co.,  69  Iowa,  665,  29  N.  W.  772;  Savannah,  F.  &  W.  Ry.  Co.  v.  Pritch- 
ard,  77  Ga.  412,  1  S.  E.  261;  Johnson  v.  Railway  Co.,  90  Ga.  810,  17  S.  E.  121. 

2  Hutch.  Carr.  §  328;    Scovill  v.  Griffith,  12  N.  Y.  509. 

s  Scovill  v.  Griffith,  12  N.  Y.  509;  Ruppel  v.  Railway  Co.,  167  Pa.  St.  166,  31 
Atl.  478;  Hudson  v.  Railway  Co.,  92  Iowa,  231,  60  N.  W.  608;  Fox  v.  Rail- 
road Co.,  148  Mass.  220,  19  N.  E.  222;  Pereira  v.  Railroad  Co.,  66  Cal.  92,  4 
.Pac.  988;  Douglass  v.  Railroad  Co.,  53  Mo.  App.  473;  Gulf,  C.  &  S.  F.  R.  Co. 


§§   88-89)  LIABILITY    FOR    DELAY.  235 

What  is  a  reasonable  time  is  always  a  question  of  fact,  requiring  a 
consideration  of  all  the  attendant  circumstances, — the  nature  of  the 
goods;  the  distance;  the  character  of  the  journey,  whether  by  land 
or  water;  the  motive  power;  the  season  of  the  year;  the  weather; 
and  the  like.* 

Ei-iusesfor  Delay. 

If  the  delay  in  transportation  occurs  without  the  fault  or  negli- 
gence of  the  carrier,  he  cannot  be  held  liable  for  resulting  loss.5  Nor 
will  the  carrier  be  liable  for  delay  caused  by  mere  accident  or  mis- 
fortune, although  not  of  such  a  nature  as  to  be  characterized  as  "in- 
evitable," provided  it  could  not  have  been  anticipated  and  avoided  by 
the  exercise  of  ordinary  care.6  Thus,  the  carrier  will  not  be  liable 
for  delay  caused  by  the  violence  of  mobs  or  strikers,7  although  he 

v.  Hughes  (Tex.  Civ.  App.)  31  S.  W.  411;  The  Caledonia,  157  U.  S.  124,  15 
Sup.  Ct.  537;  Houseman  v.  Transportation  Co.,  104  Mich.  300,  62  N.  W.  290. 
And  the  shipper  may  recover  expenses  to  which  he  has  been  put  by  the  delay. 
Black  v.  Baxendale,  1  Exch.  410;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Tuckett 
(Tex.  Civ.  App.)  25  S.  W.  150;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hume.  87  Tex.  211, 
27  S.  W.  110. 

*  Coffin  v.  Railroad  Co.,  64  Barb.  (N.  Y.)  379;  Wibert  v.  Railroad  Co.,  12  N. 
Y.  245;  Nudd  v.  Wells,  11  Wis.  407;  Parsons  v.  Hardy,  14  Wend.  (N.  Y.)  215; 
Michigan  Southern  &  N.  I.  R.  Co.  v.  Day,  20  111.  375;  Bennett  v.  Byram,  38 
Miss.  17;  East  Tennessee  &  G.  R.  Co.  v.  Nelson,  1  Cold.  (Tenn.)  272;  Gerhard 
v.  Xeese,  36  Tex.  635;  McGraw  v.  Railroad  Co.,  18  W.  Va.  301;  Peterson  v. 
Case,  21  Fed.  SS5;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Heath,  41  Ark.  476;  Ormsby 
v.  Railroad  Co.,  2  McCrary,  48,  4  Fed.  170,  706;  St.  Clair  v.  Railroad  Co.,  80 
Iowa,  304,  45  N.  W.  570. 

5  Ruppel  v.  Railway  Co.,  167  Pa.  St.  166,  31  Atl.  478;  Philadelphia,  W.  &  B. 
R.  Co.  v.  Lehman,  56  Md.  209;  Taylor  v.  Railroad  Co.,  L.  R.  1  C.  P.  385.  But 
he  is  liable  for  negligent  delay.  Rawson  v.  Holland,  59  N.  Y.  611;  Michigan 
Southern  &  N.  I.  R.  Co.  v.  Day,  20  111.  375;  Rathbone  v.  Xeal,  4  La.  Ann.  563. 

«  Hutch.  Carr.  §  330. 

T  Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Hollowell,  65  Ind.  188.  But  see  Black- 
stock  v.  Railroad  Co.,  20  X.  Y.  48.  Where  the  places  of  striking  employes 
are  promptly  supplied  by  other  competent  men,  and  the  strikers  then  prevent 
the  new  employes  from  doing  their  duty  by  lawless  and  irresistible  violence, 
the  company  is  not  liable  for  delay  caused  solely  by  such  violence.  Pittsburgh, 
Ft.  W.  &  C.  R.  Co.  v.  Hazen,  84  111.  36;  Pittsburgh,  C.  &  St.  L.  R.  Co.  v. 
Hollowell,  65  Ind.  188;  Geismer  v.  Railway  Co.,  102  N.  Y.  563,  7  X.  E.  828; 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Levi,  76  Tex.  337,  13  S.  W.  191;  Haas  v.  Railroad 
Co.,  81  Ga,  792,  7  S.  E.  629;  International  &  G.  N.  Ry.  Co.  v.  Tisdale,  74  Tex. 
8,  11  S.  W.  900;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Bennett,  89  Ind.  457;  Bait- 


236  CARRIERS    OF   GOODS.  (Ch.   6 

would  be  absolutely  liable  for  loss  or  damage  from  the  same  source.8 
Other  causes  of  excusable  delay  are:  A  low  stage  of  water,  imped- 
ing navigation; 9  collision  either  on  land  10  or  water; 1X  an  unusual 
press  of  freight;12  heavy  snow;13  freezing  of  navigable  waters;1* 
and  the  like.15 

Not  infrequently  the  ultimate  safety  of  the  goods  must  be  consid- 
ered, rather  than  their  speedy  delivery,  and  in  such  circumstances 
delay  may  become  a  positive  duty.  Thus,  where  the  customary  route 
of  a  vessel  through  Long  Island  Sound  became  blocked  with  ice,  and, 
in  attempting  to  make  the  passage  by  way  of  the  open  ocean,  the 
vessel  and  goods  were  lost  in  a  storm,  the  carrier  was  held  liable,  on 
the  ground  that  the  master  should  have  waited  until  the  safer  route 
was  open.16 

When  a  delay  occurs,  it  is  the  duty  of  the  carrier  to  use  ordinary 
care  to  preserve  the  goods  from  injury  or  deterioration,17  and  he 
must  resume  and  complete  the  transportation  so  soon  as  the  cause 
of  the  delay  is  removed.18 

lett  v.  Railway  Co.,  94  Ind.  281;  Missouri  Pac.  Ry.  Co.  v.  Levi  (Tex.  App.)  14 
S.  W.  1062;  Southern  Pac.  Ry.  Co.  v.  Johnson  (Tex.  App.)  15  S.  W.  121;  Gulf, 
C.  &  S.  F.  Ry.  Co.  v.  Gatewood,  79  Tex.  89,  14  S.  W.  913. 

s  See  ante,  p.  229. 

»  Bennett  v.  Byrain,  38  Miss.  17;   Silver  v.  Hale,  2  Mo.  App.  557. 

10  Conger  v.  Railroad  Co.,  6  Duer  (N.  Y.)  375. 

11  Parsons  v.  Hardy,  14  Wend.  (N.  Y.)  215. 

12  Wibert  v.  Railroad  Co.,  12  N.  Y.  245;   Michigan  Cent.  R.  Co.  v.  Burrows, 
33  Mich.  6.     But  see  Thomas  v.  Railway  Co.,  63  Fed.  200;    International  &  G. 
N.  Ry.  Co.  v.  Anderson,  3  Tex.  Civ.  App.  8,  21  S.  W.  691;   Louisville  &  N.  R. 
Co.  v.  Touart,  97  Ala.  514,  11  South.  756. 

is  Pruitt  v.  Railroad  Co.,  62  Mo.  527;  Ballentine  v.  Railroad  Co.,  40  Mo.  491; 
Briddon  v.  Railway  Co.,  28  L.  J.  Exch.  51. 

i*  Bowman  v.  Teall,  23  Wend.  (N.  Y.)  306;  Beckwith  v.  Frisbie,  32  Vt.  559. 
But  see  Spann  v.  Transportation  Co.,  11  Misc.  Rep.  680,  33  N.  Y.  Supp.  566. 

is  Generally,  Vicksburg  &  M.  R.  Co.  v.  Ragsdale.  46  Miss.  458;  Livingston 
v.  Railroad  Co.,  5  Hun  (N.  Y.)  562;  Taylor  v.  Railway  Co.,  L.  R.  1  C.  P.  385. 
Atmospheric  conditions  crippling  telegraph  service,  International  &  G.  X.  R. 
Co.  v.  Hynes,  3  Tex.  Civ.  App.  20,  21  S.  W.  622;  floods,  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  v.  Jones  (Tex.  Civ.  App.)  29  S.  W.  695;  International  &  G.  N.  R. 
Co.  v.  Wentworth,  8  Tex.  Civ.  App.  5,  27  S.  W.  680. 

IB  Crosby  v.  Fitch,  12  Conn.  410. 

IT  Bowman  v.  Teall,  23  Wend.  (N.  Y.)  306;   Bennett  v.  Byram,  38  Miss.  17. 

isHadley  v.  Clarke,  8  Term  R.  259;  Palmer  v.  Lorillard,  16  Johns.  (X.  Y.) 
348. 


§    91)  CONTRACTS    LIMITING    LIABILITY.  237 


SAME— SPECIAL  CONTRACT  OF  DELIVERY. 

90.  When  the   carrier,  by  special   contract,  agrees  to   de- 

liver the  goods  -within  a  specified  time,  he  becomes 
an  insurer  in  that  respect,  and  the  duty  is  abso- 
lute,1 and  not  even  the  act  of  God  will  relieve  him 
from  liability.2 

In  all  contracts  of  this  kind,  it  is  the  duty  of  the  shipper  to  fur- 
nish the  goods  at  the  time  agreed  on,  and,  on  his  default  in  this  par- 
ticular, the  carrier  cannot  be  held  liable  if  the  transportation  is  not 
completed  within  the  prescribed  time.3 

CONTRACTS  LIMITING  LIABILITY 

91.  In  the   absence  of  a  prohibiting   statute,  the  common 

carrier  of  goods  may,  by  special  contract  -with  the 
shipper,  limit  his  liability  to  that  of  ordinary  bailee 
for  hire;  but  he  cannot  thereby  relieve  himself  of 
responsibility  for  the  negligence  of  himself  or  his 
agents. 

EXCEPTIONS— (a)  By  the  Illinois  rule,  the  carrier  may 
stipulate  against  the  ordinary,  but  not  the  gross, 
negligence  of  his  servants. 

(b)  By  the  New  York  rule,  the  carrier  may  contract 
against  liability  for  any  degree  of  negligence  on  the 
part  of  his  servants,  but  cannot  escape  responsibility 
for  his  personal  negligence. 

§  90.  i  Fox  v.  Railroad  Co.,  148  Mass.  220,  19  N.  E.  222;  Pereira  v.  Rail- 
road Co.,  66  Cal.  92,  4  Pac.  988;  Chicago  £  A.  R.  Co.  v.  Thrapp,  5  111.  App.  502: 
Deming  v.  Railroad  Co.,  48  N.  H.  455;  Place. v.  Express  Co.,  2  Hilt.  (X.  Y.I 
19;  Harrison  v.  Railway  Co.,  74  Mo.  304;  Parmalee  v.  Wilks,  22  Barb.  (N.  Y.I 
539;  Harmony  v.  Bingham,  12  N.  Y.  99;  Cantwell  v.  Express  Co.,  58  Ark.  487. 
25  S.  W.  503.  The  contract  may  be  implied  from  acceptance  of  the  goods  with 
knowledge  that  they  are  intended  to  be  at  their  destination  on  a  given  day. 
Chicago  &  A.  R.  Co.  v.  Thrapp.  5  111.  App.  502;  Grindle  v.  Express  Co..  67 
Me.  317;  Philadelphia,  W.  &  B.  R.  Co.  v.  Lehman.  56  Md.  209.  But  see  United 
States  Exp.  Co.  v.  Root  47  Mich.  231,  10  X.  W.  351. 

2  Harmony  v.  Bingham,  12  X.  Y.  99;  Id.,  1  Duer  (X.  Y.)  209;  Miller  v.  Rail- 
way Co.,  1  Mo.  App.  Rep'r,  474. 

s  Hutch.  Carr.  §  319a;  Fowler  v.  Steam  Co.,  87  N.  Y.  190. 


238  CARRIERS    OF    GOODS.  (Ch.    6 

In  England,  in  the  early  part  of  the  present  century,  the  rigor  of 
the  common  law  was  relaxed,  and  the  right  of  the  carrier  to  limit 
his  extraordinary  liability  by  special  contract  was  clearly  recog- 
nized,1 and  he  was  even  permitted  to  exempt  himself  from  liability 
for  .his  own  negligence.2  In  this  country,  the  earliest  recorded  case 
in  which  the  question  squarely  arose  was  that  of  Gould  v.  Hill.3 
Basing  its  decision  on  grounds  of  public  policy,  the  court  held  in 
that  case  that  the  carrier  could  not  qualify  or  vary  his  common-law 
liability  by  contract.  This  was  followed,  after  an  interval  of  a  few 
years,  by  the  case  of  New  Jersey  Steam  Nav.  Co.  v.  Merchants' 
Bank,4  in  which  the  supreme  court  of  the  United  States  disapproved 
the  ruling  in  Gould  v.  Hill,  and  unanimously  decided  that  the  com- 
mon carrier  might,  by  special  contract,  restrict  his  liability.  And  it 
is  now  almost  universally  held  in  this  country  that  the  carrier  may 
contract  against  his  liability  as  an  insurer,  but  not  against  liability 
for  damages  caused  by  his  own  or  his  servants'  negligence.6  While 

§  91.  i  Izett  v.  Mountain,  4  East,  371;  Nicholson  v.  Willan,  5  East,  507; 
Clarke  v.  Gray,  6  East,  564;  Harris  v.  Packwood,  3  Taunt.  264;  Beck  v.  Evans, 
16  East,  244;  Munn  v.  Baker,  2  Starkie,  255;  Wyld  v.  Pickford.  8  Mees.  &  W. 
443;  Carr  v.  Railway  Co.,  7  Exch.  707. 

2  Maying  v.  Todd,  1  Starkie,  72;  Leeson  v.  Holt,  Id.  186;  Carr  v.  Railway 
Co.,  7  Exch.  707. 

s  2  Hill  (N.  Y.)  623. 

4  6  How.  344. 

5  South  &  N.  A.  R.  Co.  v.  Henlein,  52  Ala.  606,  56  Ala,  368;   East  Tennessee, 
V.  &  G.  R.  Co.  v.  Johnston,  75  Ala.  596;    Little  Rock,  M.  R.  &  T.  Ry.  Co.  v. 
Talbot,  47  Ark.  97,  14  S.  W.  471;    Taylor  v.  Railroad  Co.,  39  Ark.  148;    Over- 
land Mail  &  Express  Co.  v.  Carroll,  7  Colo.  43,  1  Pac.  682;  Merchants'  Dispatch 
&  Transportation  Co.  v.  Cornforth,  3  Colo.  280;   Union  Pac.  R.  Co.  v.  Rainey, 
19  Colo.  225,  34  Pac.  986;    Camp  v.  Steamboat  Co.,  43  Conn.  333;    Welch  v. 
Railroad  Co.,  41  Conn.  333;   Central  R.  Co.  v.  Bryant,  73  Ga.  722,  726;   Berry 
v.  Cooper,  28  Ga.  543:   Flinn  v.  Railroad  Co.,  1  Hotist.  (Del.)  469,  502;    Bosco- 
witz  v.  Express  Co.,  93  111.  523;    Erie  Ry.  Co.  v.  Wilcox,  84  111.  239;   Rosenfeld 
v.  Railway  Co.,  103  Ind.  121,  2  N.  E.  344;   Bartlett  v.  Railway  Co.,  94  Ind.  281; 
Ohio  &  M.  Ry.  Co.  v.  Selby,  47  Ind.  471;    Sprague  v.  Railway  Co.,  34  Kan. 
347,  8  Pac.  465;  St.  Louis,  K.  C.  &  N.  Ry.  Co.  v.  Piper,  13  Kan.  505;   Louisville 
&  N.  R.  Co.  v.  Brownlee,   14  Bush  (Ky.)  590;    Louisville,  C.  &  L.  R.  Co.  v. 
Hedger,  9  Bush  (Ky.)  645;   New  Orleans  Mut.  Ins.  Co.  v.  Railroad  Co.,  20  La. 
Ann.  302;   Roberts  v.  Riley,  15  La.  Ann.  103;    Little  v.  Railroad  Co.,  66  Me. 
9.39;   Willis  v.  Railway  Co.,  62  Me.  488;   McCoy  v.  Transportation  Co.,  42  Md. 
-i/d;    Brehme  v.  Dinsmore,  25  Md.  328;    Hoadley  v.  Transportation  Co.,  115 


§    91)  CONTRACTS    LIMITING    LIABILITY.  239' 

conceding  the  justice  and  reason  of  the  rule  permitting  the  carrier 
to  restrict  his  liability  as  an  insurer,  our  courts  have  recognized  the 
unequal  footing  upon  which  the  carrier  and  the  shipper  stand,  and 
have  steadfastly  held  it  a  matter  of  public  policy  to  place  some  limi- 
tation upon  the  rule.  They  have,  accordingly,  been  almost  unani- 
mous in  denying  the  right  of  common  carriers  to  contract  against 
liability  for  negligence,  either  of  themselves  or  their  agents  or  em- 
ploye's. The  elaborate  opinion  of  Mr.  Justice  Bradley  in  New  York 

Mass.  304;  Pemberton  Co.  v.  Railroad  Co.,  104  Mass.  144,  151;  School  Dist.  in 
Medfleld  v.  Boston,  H.  &  E.  R.  Co.,  102  Mass.  552;  Grace  v.  Adams,  100  Mass. 
505;  Squire  v.  Railroad  Co.,  98  Mass.  239;  Feige  v.  Railroad  Co.,  62  Mich.  1, 
28  X.  W.  685;  Michigan  Cent.  R.  Co.  v.  Ward,  2  Mich.  538,  overruled  in  Mich- 
igan Cent.  R.  Co.  v.  Hale,  6  Mich.  243;  Boehl  v.  Railway  Co.,  4^  Minn.  191, 
40  X.  W.  333;  Hull  v.  Railway  Co.,  41  Minn.  510,  43  N.  W.  391;  Ortt  v.  Rail- 
way Co.,  3G  Minn.  396,  31  X.  W.  519;  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Abels, 
60  Miss.  1017;  Xew  Orleans,  St.  L.  &  C.  R.  Co.  v.  Faler,  58  Miss.  911;  McFad- 
den  v.  Railway  Co.,  92  Mo.  343,  4  S.  W.  689;  Ball  v.  Railway  Co.,  83  Mo.  574; 
Craycroft  v.  Railroad  Co.,  18  Mo.  App.  487;  Atchison  &  N.  R.  Co.  v.  Washburn, 

5  Xeb.  117,  121;    Chicago,  R.  I.  &  P.  R.  Co.  v.  Witty,  32  Xeb.  275,  49  N.  W. 
183;    Rand  v.  Transportation  Co.,  59  X.  H.  363;    Moses  v.  Railroad  Co.,  24 
X.  H.  71,  32  X.  H.  523;    Ashmore  v.  Transportation  Co.,  28  N.  J.  Law,  180; 
Phifer  v.  Railway  Co.,  89  N.  C.  311;  Smith  v.  Railroad  Co.,  64  N.  C.  235;   Gaines 
v.  Insurance  Co.,  28  Ohio  St.  418;    United  States  Exp.  Co.  v.  Backman,  Id, 
144;    Union  Exp.  Co.  v.  Graham,  26  Ohio  St.  595;    Armstrong  v.  Express  Co., 
159  Pa.  St.  640,  28  Atl.  448;    Merchants'  Despatch  Transp.  Co.  v.  Bloch,  86 
Tenn.  392,  397,  6  S:  W.  881;    Coward  v.  Railroad  Co.,   16  Lea  (Tenn.)  225; 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Trawick,  68  Tex.  314,  4  S.  W.  567  (under  statute); 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  McGown,  65  Tex.  640;    Houston  &  T.  C.  R.  Co, 
v.  Burke,  55  Tex.  323;   Mann  v.  Birchard,  40  Vt.  326;   Blumenthal  v.  Braiuerd, 
38  Vt.  402;    Virginia  &  T.  R.  Co.  v.  Sayers,  26  Grat.   (Va.)  328;    Wilson  v. 
Railroad  Co.,  21  Grat.  (Va.)  654,  671;    Brown  v.  Express  Co.,  15  W.  Va.  812; 
Maslin  v.  Railroad  Co.,  14  W.  Va,  180;   Abrams  v.  Railway  Co.,  87  Wis.  485, 
58  X.  W.  780.     And  see  Black  v.  Transportation  Co.,  55  Wis.  319,  13  N.  W, 
244;    Thomas  v.  Railway  Co..  63  Fed.  200;    Hudson  v.  Railway  Co.,  92  Iowa, 
231,  60  X.  W.  60S;   Xew  York  Cent.  R.  Co.  v.  Lockwood,  17  Wall.  357;    Michi- 
gan Cent.  R.  Co.  v.  Mineral  Springs  Mfg.  Co.,  16  Wall.  318,  328;    Ogdensburg 

6  L.  C.  R.  Co.  v.  Pratt.  22  Wall.  123;  Xew  Jersey  Steam  Xav.  Co.  v.  Merchants' 
Bank,  6  How.  344;    Liverpool  &  G.  W.  Steam  Co.  v.  Phenix  Ins.  Co.,  129  U, 
S.  397,  9  Sup.  Ct.  469;    Thomas  v.  Lancaster  Mills,  19  C.  C.  A.  88,  71  Fed. 
481;    Liverpool  &  L.  &  G.  Ins.  Co.  v.  McXeill,  32  C.  C.  A.  173,  89  Fed.  131; 
St.  Louis  &  S.  F.  Ry.  Co.  v.  Tribbey,  6  Kan.  App.  467,  50  Pac.  458;    Cox  v. 
Railroad  Co.,  170  Mass.  129,  49  X.  E.  97;    Bird  v.  Railroad  Co.,  99  Tenn.  71°, 
42  S.  W.  451;   International  &  G.  X.  R.  Co.  v.  Parish  (Tex.  Civ.  App.)  43  S, 


240  CARRIERS    OF    GOODS.  (Ch.    G 

Cent.  R.  Co.  v.  Lockwood  6  is  almost  exhaustive  upon  the  subject: 
"It  is  contended  that,  though  a  carrier  may  not  stipulate  for  his  own 
negligence,  there  is  no  good  reason  why  he  should  not  be  permitted 
to  stipulate  for  immunity  for  the  negligence  of  his  servants,  over 
whose  actions,  in  his  absence,  he  can  exercise  no  control.  If  we  ad- 
vert for  a  moment  to  the  fundamental  principles  on  which  the  law 
of  common  carriers  is  founded,  it  will  be  seen  that  this  objection  is 
inadmissible.  In  regulating  the  establishment  of  common  carriers, 
the  great  object  of  the  law  was  to  secure  the  utmost  care  and  dili- 
gence in  the  performance  of  their  important  duties, — an  object  es- 
sential to  the  welfare  of  every  civilized  community.  Hence  the  com- 
mon-law rule,  which  charged  the  common  carrier  as  an  insurer. 
Why  charge  him  as  such?  Plainly,  for  the  purpose  of  raising  the 
most  stringent  motive  for  the  exercise  of  carefulness  and  fidelity  in 
his  trust.  In  regard  to  passengers,  the  highest  degree  of  careful- 
ness and  diligence  is  expressly  exacted.  In  the  one  case  the  secur- 
ing of  the  most  exact  diligence  and  fidelity  underlies  the  law,  and  is 
the  reason  of  it ;  in  the  other,  it  is  directly  and  absolutely  prescribed 
by  the  law.  It  is  obvious,  therefore,  that  if  a  carrier  stipulate 
not  to  be  bound  to  the  exercise  of  care  and  diligence,  but  to  be 
at  liberty  to  indulge  in  the  contrary,  he  seeks  to  put  off  the  es- 
sential duties  of  his  employment,  and  to  assert  that  he  may  do 
so  seems  almost  a  contradiction  in  terms.  Now,  to  what  avail 
does  the  law  attach  these  essential  duties  to  the  employment  of  the 
common  carrier,  if  they  may  be  waived  in  respect  to  his  agents  and 
servants,  especially  when  the  carrier  is  an  artificial  being,  incapable 
of  acting  except  by  agents  and  servants?  It  is  carefulness  and  dili- 
gence in  performing  the  service  which  the  law  demands,  not  an  ab- 
stract carefulness  and  diligence  in  proprietors  and  stockholders  who 
take  no  active  part  in  the  business.  To  admit  such  a  distinction  in 
the  law  of  common  carriers,  as  the  business  is  now  carried  on,  would 
be  subversive  of  the  very  object  of  the  law.  It  is  a  favorite  argu- 
ment, in  the  cases  which  favor  the  extension  of  the  carrier's  right 
to  contract  for  exemption  from  liability,  that  men  must  be  permitted 
to  make  their  own  agreements,  and  that  it  is  no  concern  of  the  pub- 

W.  10G6;   Pierce  v.  Southern  Pac.  Co.,  120  Cal.  156,  47  Pac.  874,  52  Pac.  302; 
Pittsburgh,  C.,  C.  &  St.  L.  Ry.  Co.  v.  Sheppard,  50  Ohio  St.  68,  46  N.  E.  61. 
e  17  Wall.  357. 


§    91)  CONTRACTS    LIMITING    LIABILITY.  241 

lie  on  what  terms  an  individual  chooses  to  have  his  goods  carried. 
Thus,  in  Dorr  v.  New  Jersey  Steam  Xav.  Co.,7  the  court  sums  up  its 
judgment  thus:  'To  say  the  parties  have  not  a  right  to  make  their 
own  contract,  and  to  limit  the  precise  extent  of  their  own  respective 
risks  and  liabilities,  in  a  matter  no  way  affecting  the  public  morals 
or  conflicting  with  the  public  interests,  would,  in  my  judgment,  be  an 
unwarrantable  restriction  upon  trade  and  commerce,  and  a  most  pal- 
pable invasion  of  personal  right.'  Is  it  true  that  the  public  interest 
is  not  affected  by  individual  contracts  of  the  kind  referred  to?  Is 
not  the  whole  business  community  affected  by  holding  such  con- 
tracts valid?  If  held  valid,  the  advantageous  position  of  the  com- 
panies exercising  the  business  of  common  carriers  is  such  that  it 
places  it  in  their  power  to  change  the  law  of  common  carriers,  in 
effect,  by  introducing  new  rules  of  obligation.  The  carrier  and  his 
customer  do  not  stand  on  a  footing  of  equality.  The  latter  is  only 
one  individual  of  a  million.  He  cannot  afford  to  higgle,  or  stand 
out  and  seek  redress  in  the  courts.  His  business  will  not  admit 
such  a  course.  He  prefers,  rather,  to  accept  any  bill  of  lading  or 
sign  any  paper  the  carrier  presents;  often,  indeed,  without  knowing 
what  the  one  or  the  other  contains.  In  most  cases  he  has  no  alter- 
native but  to  do  this  or  abandon  his  business.  In  the  present  case, 
for  example,  the  freight  agent  of  the  company  testified  that  though 
they  made  40  or  50  contracts  every  week  like  that  under  considera- 
tion, and  had  carried  on  the  business  for  years,  no  other  arrange- 
ment than  this  was  ever  made  with  any  drover.  And  the  reason  is 
obvious  enough:  If  they  did  not  accept  this,  they  must  pay  tariff 
rates.  These  rates  were  70  cents  a  hundred  pounds  for  carrying 
from  Buffalo  to  Albany,  and  each  horned  animal  was  rated  at  2,000 
pounds,  making  a  charge  of  $14  for  every  animal  carried,  instead  of 
the  usual  charge  of  $70  for  a  car  load;  being  a  difference  of  three 
to  one.  Of  course,  no  drover  could  afford  to  pay  such  tariff  rates. 
This  fact  is  adverted  to  for  the  purpose  of  illustrating  how  complete- 
ly in  the  power  of  the  railroad  companies  parties  are,  and  how  nec- 
essary it  is  to  stand  firmly  by  those  principles  of  law  by  which  the 
public  interests  are  protected.  If  the  customer  had  any  real  free- 
dom of  choice,  if  he  had  a  reasonable  and  practicable  alternative, 
and  if  the  employment  of  the  carrier  were  not  a  public  one,  charging 

i  4  Sandf.  (N.  Y.)  13G. 
BAR.NEG.— 16 


242  CARRIERS    OF    GOODS.  (Oil.   6 

him  with  the  duty  of  accommodating  the  public  in  the  line  of  his 
employment,  then,  if  the  customer  chose  to  assume  the  risk  of  neg- 
ligence, it  could  with  more  reason  be  said  to  be  his  private  affair, 
and  no  concern  of  the  public.  But  the  condition  of  things  is  entirely 
different,  and  especially  so  under  the  modified  arrangements  which 
the  carrying  trade  has  assumed.  The  business  is  mostly  concentrat- 
ed in  a  few  powerful  corporations,  whose,  position  in  the  body  politic 
enables  them  to  control  it.  They  do,  in  fact,  control  it,  and  impose 
such  conditions  upon  travel  and  transportation  as  they  see  fit,  which 
the  public  is  compelled  to  accept.  These  circumstances  furnish  an 
additional  argument,  if  any  were  needed,  to  show  that  the  condi- 
tions imposed  by  common  carriers  ought  not  to  be  adverse,  to  say  the 
least,  to  the  dictates  of  public  policy  and  morality.  The  status  and 
relative  position  of  the  parties  render  any  such  conditions  void. 
Contracts  of  common  carriers,  like  those  of  persons  occupying  a  fidu- 
ciar}'  character,  giving  them  a  position  in  which  they  can  take  undue 
advantage  of  the  persons  with  whom  they  contract,  must  rest  upon 
their  fairness  and  reasonableness.  It  was  for  the  reason  that  the 
limitations  of  liability  first  introduced  by  common  carriers  into  their 
notices  and  bills  of  lading  were  just  and  reasonable  that  the  courts 
sustained  them.  It  was  just  and  reasonable  that  they  should  not 
be  responsible  for  losses  happening  by  sheer  accident,  or  dangers  of 
navigation  that  no  human  skill  or  vigilance  could  guard  against;  it 
was  just  and  reasonable  that  they  should  not  be  chargeable  for  mon- 
ey or  other  valuable  articles  liable  to  be  stolen  or  damaged,  unless 
apprised  of  their  character  or  value;  it  was  just  and  reasonable  that 
they  should  not  be  responsible  for  articles  liable  to  rapid  decay,  or 
for  live  animals  liable  to  get  unruly  from  fright,  and  to  injure  them- 
selves in  that  state,  when  such  articles  or  live  animals  became  in- 
jured without  their  fault  or  negligence.  And,  when  any  of  these 
just  and  reasonable  excuses  were  incorporated  into  notices  or  special 
contracts  assented  to  by  their  customers,  the  law  might  well  give 
effect  to  them  without  the  violation  of  any  important  principle,  al- 
though modifying  the  strict  rules  of  responsibility  imposed  by  the 
common  law.  The  improved  state  of  society,  and  the  better  admin- 
istration of  the  laws,  had  diminished  the  opportunities  of  collusion 
and  bad  faith  on  the  part  of  the  carrier,  and  rendered  less  imperative 
the  application  of  the  iron  rule  that  he  must  be  responsible  at  all 


§91)  CONTRACTS    LIMITING    LIABILITY.  24-> 

events.  Hence  the  exemptions  referred  to  were  deemed  reasonable 
and  proper  to  be  allowed  But  the  proposition  to  allow  a  public  car- 
rier to  abandon  altogether  his  obligations  to  the  public,  and  to  stip- 
ulate for  exemptions  that  are  unreasonable  and  improper,  amount- 
ing to  an  abdication  of  the  essential  duties  of  his  employment,  would 
never  have  been  entertained  by  the  sages  of  the  law.  Hence,  as  be- 
fore remarked,  we  regard  the  English  statute  called  the  Railway  an  1 
Canal  Traffic  Act,'  passed  in  1854,  which  declared  void  all  notices 
and  conditions  made  by  common  carriers,  except  such  as  the  judge  at 
the  trial,  or  the  courts,  should  hold  just  and  reasonable,  as  substan- 
tially a  return  to  the  rules  of  the  common  law.  It  would  have  been 
more  strictly  so,  perhaps,  had  the  reasonableness  of  the  contract 
been  referred  to  the  law,  instead  of  the  individual  judges.  The  deci- 
sions made  for  more  than  half  a  century  before  the  courts  com- 
menced the  abnormal  course  which  led  to  the  necessity  of  that  stat- 
ute, giving  effect  to  certain  classes  of  exemptions  stipulated  for  by 
the  carrier,  may  be  regarded  as  authorities  on  the  question  as  to 
what  exemptions  are  just  and  reasonable.  So  the  decisions  of  our 
own  courts  are  entitled  to  like  effect,  when  not  made  under  the 
fallacious  notion  that  every  special  contract  imposed  by  the  common 
carrier  on  his  customers  must  be  carried  into  effect,  for  the  simple 
reason  that  it  was  entered  into  without  regard  to  the  character  of 
the  contract  and  the  relative  situation  of  the  parties.  Conceding, 
therefore,  that  special  contracts  made  by  common  carriers  with  their 
customers,  limiting  their  liability,  are  good  and  valid  so  far  as  they 
are  just  and  reasonable  (to  the  extent,  for  example,  of  excusing  them 
for  all  losses  happening  by  accident,  without  any  negligence  or  fraud 
on  their  part),  when  they  ask  to  go  still  further,  and  to  be  excused 
for  negligence  (an  excuse  so  repugnant  to  the  law  of  their  founda- 
tion and  to  the  public  good),  they  have  no  longer  any  plea  of  justice 
or  reason  to  support  such  a  stipulation,  but  the  contrary;  and  then 
the  inequality  of  the  parties,  the  compulsion  under  which  the  cus- 
tomer is  placed,  and  the  obligations  of  the  carrier  to  the  public  oper- 
ate with  full  force  to  devest  the  transaction  of  validity." 


244:  CARRIERS    OF    GOODS.  (Ul.   G 


SAME— LIMITATION  IN  ILLINOIS. 

92.  The  decisions  in  Illinois  sustain  contracts  limiting  the 

carrier's  liability   to  losses  caused   by  gross   negli- 
gence. 

Under  the  decisions  in  Illinois,  the  right  of  the  carrier  to  contract 
against  liability  is  carried  to  the  extreme;  he  is  thereby  permitted 
to  restrict  his  responsibility  to  the  gross  or  willful  negligence  of  his 
sen-ants.1  A  few  other  states  have  lent  their  sanction  to  the  same 
doctrine.2 

SAME— LIMITATION  IN  NEW  YORK. 

93.  Under  the  New  York  decisions,  the  carrier  is  permit- 

ted to  contract  against  the  results  of  his  servants', 
but  not  against  those  of  his  own,  negligence. 

The  argument  for  the  New  York  rule  is  clearly  stated  in  the  case 
of  French  v.  Buffalo  &  E.  R.  Co.: x  "A  party  may  certainly  consent 
to  place  the  instruments  and  agencies  which  he  is  employing  in  his 
business  at  the  service,  pro  hac  vice,  of  another,  undertaking  to  set 
them  in  motion  under  the  scheme  or  plan  of  management  which  he 
has  established,  and  say:  'You  shall  have  the  benefit  of  my  enter- 
prise, my  machinery,  my  servants,  my  rules,  my  regulations,  and 
scheme  of  administration;  but  I  propose  that  you  shall  take  the 
hazards  of  everything  but  my  own  fraud  or  gross  negligence,  and  re- 
gard me  in  no  respect  insuring  or  guarantying  the  fidelity  or  the  pru- 
dence, diligence,  or  care  of  those  servants,  whom  I  have  no  reason 
to  distrust,  but  who  may,  out  of  my  personal  presence,  neglect  their 

§  92.  i  Arnold  v.  Eailroad  Co.,  83  111.  273;  Illinois  Cent.  R.  Co.  v.  Morrison. 
19  111.  136;  Same  v.  Read,  37  111.  484;  Erie  Ry.  Co.  v.  Wilcox,  84  111.  239; 
Wabash  Ry.  Co.  v.  Brown,  152  111.  484,  39  N.  E.  273;  Adams  Exp.  Co.  v. 
Haynes,  42  111.  89;  Illinois  Cent.  R.  Co.  v.  Adams.  Id.  474;  Same  v.  Smyser, 
38  111.  354;  compare  Adams  Exp.  Co.  v.  Stettaners,  61  111.  184;  Boskowitz 
v.  Express  Co.  (111.)  5  Cent.  Law  J.  58;  Cleveland,  C.,  C.  &  St.  L.  Ry.  Co.  v. 
Newlin,  74  111.  App.  638. 

2  Meuer  v.  Railway  Co.,  5  S.  D.  568,  59  N.  W.  945.  The  INDIANA  and 
ALABAMA  courts  now  follow  the  ordinary  rule.  See  ante,  §  91,  note  5. 

i  WJ.     i  *43  N.  Y.  108. 


§   93)  LIMITATION    IN    NEW    YORK.  245 

duty  or  prove  otherwise  unfaithful.'  There  is  no  sound  reason  for 
denying  that  if  a  contract  is  made  on  those  terms,  and  presumptively 
for  a  much  less  compensation  to  be  paid,  it  shall  not  bind  the  parties. 
It  may  safely  be  assumed  that,  in  this  country,  at  least,  men  of 
business  are  shrewd  enough  to  take  care  of  their  own  interests,  and 
that,  if  a  party  consents  to  such  a  bargain,  it  is  because  it  is  for  his 
interest  to  do  so.  He  expects  to  make  or  save  money  by  relieving 
the  other  party  from  risks  which  he  is  willing  to  assume,  and  in  gen- 
eral his  expectation  is  realized.  There  is  neither  honesty  nor  policy 
in  permitting  him,  when  a  loss  happens  through  one  of  the  risks  he 
consented  to  bear,  to  deny  the  binding  force  of  his  contract.  This 
is  now  the  practical  view  of  the  subject,  which  is  recognized  as  law." 
It  will  be  gathered  from  the  foregoing  opinion  that  a  distinction 
is  here  recognized  between  the  personal  negligence  of  the  carrier 
and  that  of  his  servants  or  agents,  it  being  permitted  to  contract 
against  the  latter,2  but  not  against  the  former.3  The  distinction  is 
clearly  unsound,  whether  the  common  carrier  be  a  corporation  or  an 
individual.  The  dissenting  opinion  of  Wright,  J.,  in  Smith  v.  New 
York  Cent.  R.  Co.,4  although  dealing  with  the  right  of  the  carrier  of 
passengers  to  limit  his  liability  generally,  presents  a  strong  argu- 
ment on  the  general  proposition  that  it  is  contrary  to  law  and  public 
policy  to  permit  the  carrier  to  contract  against  the  result  of  neg- 
ligence, either  of  himself  or  his  agents:  "Whether  a  contract  shall 
be  avoided  on  the  ground  of  public  policy  does  not  depend  upon  the 
question  whether  it  is  beneficial  or  otherwise  to  the  contracting  par- 
ties. Their  personal  interests  have  nothing  to  do  with  it,  but  the 
interests  of  the  public  are  alone  to  be  considered.  The  state  is  in- 
terested not  only  in  the  welfare,  but  in  the  safety,  of  its  citizens. 
To  promote  these  ends  is  a  leading  object  of  government.  Parties 

2  Wilson  v.  Railroad  Co.,  97  X.  Y.  87;  Eissell  v.  Railroad  Co.,  25  N.  Y.  442; 
Perkins  v.  Same,  24  X.  Y.  19G;  Wells  v.  Same,  Id.  181;  Smith  v.  Same,  Id. 
222.  But  the  decisions  in  New  York  have  not  been  uniform.  Wells  v.  Xaviga- 
tion  Co.,  8  X.  Y.  375;  Maguiu  v.  Dinsmore,  70  X.  Y.  410;  Alexander  v.  Greene, 
7  Hill,  533;  Dorr  v.  Xavigation  Co.,  11  X.  Y.  485;  Cole  v.  Goodwin,  19  Wend. 
251;  Mynard  v.  Railroad  Co.,  71  X.  Y.  ISO. 

s  Smith  v.  Railroad  Co.,  24  X.  Y.  222.  Contra,  Cragin  v.  Railroad  Co.,  51 
X.  Y.  01.  See,  also,  Hawkins  v.  Railroad  Co.,  17  Mich.  57;  Indianapolis,  B.  & 
W.  Ry.  Co.  v.  Strain,  81  111.  504;  Welsh  v.  Railroad  Co.,  10  Ohio  St.  65. 

*  24  X.  Y.  222. 


246  CARRIERS    OF    GOODS.  (Ch.   6 

are  left  to  make  whatever  contracts  they  please,  provided  no  legal 
or  moral  obligation  is  thereby  violated,  or  any  public  interest  im- 
paired; but,  when  any  effect  or  tendency  of  the  contract  is  to  im- 
pair such  interest,  it  is  contrary  to  public  policy  and  void.  Con- 
tracts in  restraint  of  trade  are  void,  because  they  interfere  with  the 
welfare  and  convenience  of  the  state,  yet  the  state  has  a  deeper  in- 
terest in  protecting  the  lives  of  its  citizens.  It  has  manifested  this 
interest  unmistakably  in  respect  to  those  who  travel  by  railroads. 
Whether  a  carrier,  to  whose  exclusive  charge  the  safety  of  a  pas- 
senger has  been  committed,  by  his  own  culpable  negligence  and  mis- 
conduct, shall  put  in  jeopardy  the  life  of  such  passenger,  is  a  ques- 
tion affecting  the  public,  and  not  the  party  alone  who  is  being  car- 
ried. It  is  said  that  the  passenger  should  be  left  to  make  whatever 
contract  he  pleases;  but,  in  my  judgment,  the  public  having  an  in- 
terest in  his  safety,  he  has  no  right  to  absolve  a  railroad  company, 
to  whom  he  commits  his  person,  from  the  discharge  of  those  duties 
which  the  law  has  enjoined  upon  it  in  regard  for  the  safety  of  men. 
Can  a  contract,  then,  which  allows  the  carrier  to  omit  all  caution 
or  vigilance,  and  is,  in  effect,  a  license  to  be  culpably  negligent,  to 
the  extent  of  endangering  the  safety  of  the  passenger,  be  sustained? 
I  think  not.  Such  a  contract,  it  seems  to  me,  manifestly  conflicts 
with  the  settled  policy  of  the  state  in  regard  to  railroad  carriage. 
Its  effect,  if  sustained,  would  obviously  enable  the  carrier  to  avoid 
the  duties  which  the  law  enjoins  in  regard  to  the  safety  of  men,  en- 
courage negligence  and  fraud,  and  take  away  the  motive  of  self- 
interest  on  the  part  of  such  carrier,  which  is,  perhaps,  the  only  one 
adequate  to  secure  the  highest  degree  of  caution  and  vigilance.  A 
contract  with  these  tendencies  is,  I  think,  contrary  to  public  policy, 
even  when  no  fare  is  paid." 

It  is  the  duty  of  the  carrier  to  carry  safely  and  to  see  to  it  that 
there  is  no  negligence  in  the  performance  of  this  duty.  The  master 
is  equally  liable  whether  the  negligence  is  that  of  himself  or  of  his 
agents.  This  is  the  general  law.  Were  the  rule  otherwise,  any  one 
might  escape  liability  for  negligence  in  the  performance  of  his  duly 
by  delegating  the  performance  of  his  business  to  agents  or  servants. 


LIMITATION    OF    AMOUNT    OF    LIABILITY.  247 


SAME— LIMITATION  OF  AMOUNT  OF  LIABILITY. 

94.  Within  reasonable  limits,  the  carrier  may  restrict  his 
responsibility  to  an  agreed  valuation  of  the  merchan- 
dise offered,  if  the  compensation  for  carriage  is  sched- 
uled on  that  basis. 

Some  confusion  and  conflict  exist  among  the  decisions  as  to 
the  limitation  of  liability  for  losses  occurring  through  the  negli- 
gence of  the  carrier,  and  especially  where  the  carrier  attempts  by 
contract  to  fix  the  limit  below  the  value  of  the  property  carried. 

It  is  certainly  settled  by  the  weight  of  authority  that  if  the  ship- 
per, for  the  purpose  of  obtaining  a  reduced  rate,  places  a  depreciated 
value  upon  the  articles  to  be  carried,  or  by  any  device,  misrepresen- 
tation, or  artifice  induces  the  carrier  to  do  so,  he  cannot,  in  either 
case,  recover  beyond  the  value  which  has  been  thus  fixed.1  The 
tariff  is  properly  proportioned  according  to  the  value  of  the  goods 
and  the  consequent  risk  which  the  carrier  assumes,  and  a  knowl- 
edge of  the  value  is  essential  to  determining  the  degree  of  care 
which  should  be  bestowed  on  the  goods.  To  permit  the  shipper 
to  obtain  reduced  rates  by  misrepresentation,  and,  in  the  event 
of  loss,  to  hold  the  carrier  liable  for  the  higher,  concealed  value, 
would  be  a  gross  injustice,  and  the  placing  of  a  premium  on  fraud.2 
In  the  leading  case  upon  this  subject,  the  supreme  court  of  the 
United  States  declares  its  position  in  very  clear  language: 3  "The 
limitation  as  to  value  has  no  tendency  to  exempt  from  liability  for 
negligence.  It  does  not  induce  want  of  care.  It  exacts  from  the 

§  94.  i  Roseufeld  v.  Railway  Co.,  103  Ind.  121,  2  N.  E.  344;  Moses  v.  Rail- 
road Co.,  24  N.  H.  71;  Durgin  v.  Express  Co.,  60  N.  H.  277,  20  Atl.  328;  Hill 
v.  Railroad  Co.,  144  Mass.  284,  10  X.  E.  836;  Graves  v.  Railroad  Co..  137 
Mass.  33;  Squire  v.  Railroad  Co.,  98  Mass.  239;  Magnin  v.  Dinsmore,  70  N.  Y. 
410;  Steers  v.  Steamship  Co.,  57  N.  Y.  1;  New  York  Cent.  &  H.  R.  R.  Co.  v. 
Fraloff,  100  U.  S.  24;  Black  v.  Transportation  Co.,  55  Wis.  319,  13  N.  W. 
244;  Pacific  Exp.  Co.  v.  Foley,  46  Kan.  457,  26  Pac.  665;  Harvey  v.  Railroad 
Co.,  74  Mo.  538. 

2  Graves  v.  Railroad  Co.,  137  Mass.  33;   Hart  v.  Railroad  Co.,  112  U.  S.  331, 
5  Sup.  Ct.  151;    Rosenfeld  v.  Railway  Co.,  103  Ind.  121,  2  N.  E.  344. 

3  Hart  v.  Railroad  Co.,  112  U.  S.  331,  5  Sup.  Ct  151. 


248  CARRIERS    OF    GOODS.  (Ch.  6 

carrier  the  measure  of  care  due  to  the  value  agreed  on.4  The  car- 
rier is  bound  to  respond  in  that  value  for  negligence.  The  com- 
pensation for  carriage  is  based  on  that  value.  The  shipper  is 
estopped  from  saying  that  the  value  is  greater.  The  articles  have 
no  greater  value  for  the  purposes  of  the  contract  of  transporta- 
tion between  the  parties  to  the  contract.  The  carrier  must  re- 
spond for  negligence  up  to  that  value.  It  is  just  and  reasonable 
that  such  a  contract,  fairly  entered  into,  and  where  there  is  no 
deceit  practiced  on  the  shipper,  should  be  upheld.  There  is  no  vio- 
lation of  public  policy.  On  the  contrary,  it  would  be  *  *  *  re- 
pugnant to  the  soundest  principles  of  fair  dealing,  and  of  the  free- 
dom of  contracting,  and  thus  in  conflict  with  public  policy,  if  a  ship- 
per should  be  allowed  to  reap  the  benefit  of  the  contract  if  there 
is  no  loss,  and  to  repudiate  it  in  case  of  loss."  Certainly,  there  can 
be  no  injustice  in  restricting  the  shipper's  claim  for  damages  to 
Ihe  value  which  he  has  himself  placed  upon  the  property  for  trans- 
portation.5 On  the  other  hand,  it  is  equally  certain  that  the  car- 
rier cannot  bind  the  shipper  by  an  arbitrary  valuation  of  the  articles 
received  for  carriage.  If  there  is  no  representation  of  value  by  the 
shipper  or  request  of  him  for  a  statement  of  value;  if  there  is  no 
notice  and  agreement  and  no  valuable  consideration, — the  carrier, 
in  case  of  loss,  must  respond  in  damages  for  the  full  value  of  the 
property,  regardless  of  any  arbitrary  valuation  which  he  may  have 
seen  fit  to  place  upon  it.6 

It  remains  to  consider  the  power  of  the  common  carrier  to  limit 
his  liability  in  cases  of  negligence  to  an  amount  less  than  the  value 

*  See  Graves  v.  Railroad  Co.,  137  Mass.  33;  Squire  v.  Railroad  Co.,  98  Mass. 
239;  Rosenfeld  v.  Railway  Co.,  103  Ind.  121,  2  N.  E.  344;  Hopkins  v.  Westcott, 
6  Blatclif.  64,  Fed.  Cas.  No.  6,692;  The  Aline,  25  Fed.  562;  The  Hadji,  18  Fed. 
459. 

5  Duntley  v.  Railroad  Co.,  66  N.  H.  263,  20  Atl.  327.  See,  also,  Magnin  v. 
Dinsmore,  62  N.  Y.  35;  Graves  v.  Railroad  Co.,  137  Mass.  33;  Hill  v.  Railroad 
Co.,  144  Mass.  284,  10  N.  E.  836;  Alair  v.  Railroad  Co.,  53  Minn.  160,  54  N.  W. 
1072;  Toy  v.  Railroad  Co.  (Sup.)  56  N.  Y.  Supp.  182;  Pierce  v.  Southern  Pac. 
Co.,  120  Cal.  156,  47  Pac.  874,  and  52  Pac.  302;  Goodman  v.  Railway  Co.,  71 
Mo.  App.  460;  Smith  v.  Express  Co.,  108  Mich.  572,  66  N.  W.  479. 

e  Kansas  City,  St.  J.  &  C.  B.  R.  Co.  v.  Simpson,  30  Kan.  645,  2  Pac.  821; 
Louisville  &  N.  R.  Co.  v.  Levi,  8  Ohio  Dec.  373;  Gillespie  v.  Platt,  19  Misc. 
Rep.  43,  42  N.  Y.  Supp.  876;  Donovan  v.  Oil  Co.,  155  N.  Y.  112,  49  N.  E.  678; 
Chicago  &  N.  W.  Ry.  Co.  v.  Simon,  160  111.  648,  43  N.  E.  590. 


§    94)  LIMITATION    OF    AMOUNT    OF    LIABILITY.  240 

of  the  property.  Some  courts  have  held  that  all  contracts  in  any 
degree  limiting  the  amount  of  liability  in  such  cases  are  void.7 
The  argument  supporting  this  view  runs  thus:  "The  carrier  can- 
not, by  contract,  excuse  itself  from  liability  for  the  whole  nor  any 
part  of  a  loss  brought  about  by  its  negligence.  To  our  minds,  it 
is  perfectly  clear  that  the  two  kinds  of  stipulation — that  providing 
for  total,  and  that  providing  for  partial,  exemption  from  liability 
for  the  consequences  of  the  carrier's  negligence — stand  upon  the 
same  ground,  and  must  be  tested  by  the  same  principles.  If  one 
can  be  enforced,  the  other  can;  if  either  be  invalid,  both  must  be 
held  to  be  so,  the  same  considerations  of  public  policy  operating  in 
each  case.  With  great  deference  for  those  who  may  differ  with 
us,  we  think  it  entirely  illogical  and  unreasonable  to  say  that  the 
carrier  may  not  absolve  itself  from  liability  for  the  whole  value 
of  property  lost  or  destroyed  through  its  negligence,  but  that  it 
may  absolve  itself  from  responsibility  for  one-half,  three-fourths, 
seven-eighths,  nine-tenths,  or  ninety-nine  hundredths  of  the  loss 
so  occasioned.  With  great  unanimity,  the  authorities  say  it  can- 
not do  the  former.  If  allowed  to  do  the  latter,  it  may  thereby 
substantially  evade  and  nullify  the  lawr,  which  says  it  shall  not  do 
the  former,  and  in  that  way  do  indirectly  what  it  is  forbidden  to 
do  directly.  We  hold  that  it  can  do  neither.  The  requirement  of 

T  Oppenheimer  v.  Express  Co.,  69  111.  62;  Adains  Exp.  Co.  v.  Stettaners,  61 
111.  184;  Alabama  G.  S.  R.  Co.  v.  Little,  71  Ala.  611;  South  &  N.  A.  R.  Co. 
v.  Henlein,  52  Ala.  606;  Mobile  &  O.  R.  Co.  v.  Hopkins,  41  Ala.  486;  Adams 
Exp.  Co.  v.  Harris,  120  Ind.  73,  21  N.  E.  340;  Chicago,  St.  L.  &  N.  O.  R.  Co. 
v.  Abels,  60  Miss.  1017;  Southern  Exp.  Co.  v.  Moon,  39  Miss.  822;  Coward  v. 
Railroad  Co.,  16  Lea  (Tenn.)  225;  Georgia  Railroad  &  Banking  Co.  v.  Keener, 
93  Ga.  808,  21  S.  E.  287;  Ruppel  v.  Railroad  Co.,  167  Pa.  St.  166,  31  Atl.  478; 
AA'abash  Ry.  Co.  v.  Brown,  152  111.  484,  39  N.  E.  273;  Kansas  City,  St.  J.  & 
C.  B.  R.  Co.  v.  Simpson,  30  Kan.  645,  2  Pac.  821;  United  States  Exp.  Co.  v. 
Backman.  28  Ohio  St.  144;  Black  v.  Transportation  Co.,  55  Wis.  319,  13  N.  W. 
244;  Moulton  v.  Railroad  Co.,  31  Minn.  85,  16  N.  W.  497;  Louisville  &  N.  R. 
Co.  v.  Wynn,  88  Tenn.  320,  14  S.  W.  311;  Grogan  v.  Express  Co.,  114  Pa.  St. 
523,  7  Atl.  134;  Weiller  v.  Railroad  Co.,  134  Pa.  St.  310,  19  Atl.  702;  Adams 
Exp.  Co.  v.  Holmes  (Pa.  Sup.)  9  Atl.  166;  American  Exp.  Co.  v.  Sands,  55  Pa, 
St.  140;  Westcott  v.  Fargo,  61  N.  Y.  542;  Southern  Pac.  Ry.  Co.  v.  Maddox,  75 
Tex.  300,  12  S.  W.  815;  St.  Louis  &  S.  F.  Ry.  Co.  v.  Sherlock,  59  Kan.  23, 
51  Pac.  899;  Baltimore  &  O.  S.  W.  Ry.  Co.  v.  Ragsdale,  14  Ind.  App.  406,  42 
N.  E.  1106;  Ohio  &  M.  Ry.  Co.  v.  Tabor,  98  Ky.  503,  32  S.  W.  168. 


250  CARRIERS    OF    GOODS.  (Ch.    6 

the  law  has  ever  been,  and  is  now,  that  the  common  carrier  shall  be 
diligent  and  careful  in  the  transportation  of  its  freight,  and  public 
policy  forbids  that  it  shall  throw  off  that  obligation  by  stipulation 
for  exemption,  in  whole  or  in  part,  from  the  consequences  of  its 
negligent  acts."  8 

It  is  believed,  however,  that  a  contract  of  this  nature,  fairly  en- 
tered into,  does  not  conflict  with  the  general  rule  that  common 
carriers  cannot  limit  their  liability  for  losses  occurring  through 
their  negligence.  Such  a  contract  leaves  the  carrier  responsible 
for  his  negligence;  it  merely  fixes  the  rate  of  tariff  and  liquidates 
the  damages.9  It  should  be  noted,  however,  that  a  reduced  freight 
rate,  or  other  valuable  consideration,  is  essential  to  the  validity  of 
contracts  of  this  class.10 

SAME— LIMITING  TIME  AND  MANNER  OF  MAKING  CLAIMS. 

95.  The  common  carrier  may,  by  special  contract,  limit  the 
time  -within  -which  any  claim  for  damages  shall  be 
presented,  provided  a  reasonable  time  is  allowed.1 

The  circumstances  of  each  case  must  be  considered  in  determin- 
ing what  length  of  time  is  reasonable.2  Thus,  a  stipulation  requir- 

s  Louisville  &  N.  R.  Co.  v.  Wynn,  88  Tenn.  320,  14  S.  W.  311. 

»  Harvey  v.  Railroad  Co.,  74  Mo.  538.  See,  also,  Hart  v.  Railroad  Co.,  112 
U.  S.  331,  5  Sup.  Ct.  151;  Calderon  v.  Steamship  Co.,  16  C.  C.  A.  332,  69  Fed. 
574. 

10  McFadden  v.  Railway  Co.,  92  Mo.  343,  4  S.  W.  689.  In  this  case  the  rate 
charged  was  usual  and  regular,  and  the  contract  was  avoided  for  want  of 
consideration.  Many  of  the  cases  cited  in  support  of  the  former  view  may  be 
similarly  reconciled  with  the  principles  stated  in  this  paragraph,  when  the 
facts  are  closely  considered.  See  post,  pp.  252,  253. 

§  95.  i  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Trawick,  68  Tex.  314,  4  S.  W.  567; 
Southern  Exp.  Co.  v.  Hunnicutt,  54  Miss.  566;  Southern  Exp.  Co.  v.  Caldwell, 
21  Wall.  264;  Weir  v.  Express  Co.,  5  Phila.  355;  United  States  Exp.  Co.  v. 
Harris,  51  Ind.  127;  Southern  Exp.  Co.  v.  Glenn,  16  Lea  (Tenn.)  472,  1  S.  W. 
102;  Baltimore  &  O.  S.  W.  Ry.  Co.  v.  Ragsdale,  14  Ind.  App.  406,  42  N.  E. 
1106;  Lewis  v.  Railroad  Co.,  5  Hurl.  &  N.  867.  But  see  Grieve  v.  Railway 
Co.,  104  Iowa,  659,  74  N.  W.  192. 

2  Cox  v.  Railroad  Co.,  170  Mass.  129.  49  N.  E.  97;  Gulf,  C.  &  S.  F.  Ry.  Co. 
v.  Yates  (Tex.  Civ.  App.)  32  S.  W.  355.  The  following  intervals  have  been  held 
reasonable:  Ninety  days,  Southern  Exp.  Co.  v.  Caldwell,  21  Wall.  264;  thirty 


•§    9-5)  LIMITING   TIME    AND    MANNER    OF    MAKING    CLAIMS.  251 

ing  the  consignee  of  cattle  to  present  any  claim  for  damages  at 
the  time  the  cattle  were  received,  and  before  they  were  unloaded 
and  mingled  with  the  other  cattle,  was  held  reasonable  and  valid.3 
But  a  stipulation  requiring  goods  to  be  examined  before  leaving 
the  station,  as  applied  to  a  car  load  of  cotton,  is  not  reasonable.4 

The  manner  of  presenting  claims  may  also  be  regulated  by  con- 
tract in  a  reasonable  manner,5  and  the  requirement  that  notice  of 
loss  be  made  in  writing,6  or  at  the  place  of  shipment,  is  valid.7 

days,  Hirshberg  v.  Dinsmore,  12  Daly  (N.  Y.)  429;  Kaiser  v.  Hoey  (City  Ct. 
N.  Y.)  1  N.  Y.  Supp.  429;  Southern  Exp.  Co.  v.  Hunnicutt,  54  Miss.  566;  Glenn 
v.  Express  Co.,  86  Term.  594,  8  S.  W.  152;  Weir  v.  Express  Co.,  5  Phila.  355;. 
five  days,  Chicago  &  A.  R.  Co.  v.  Simms,  18  111.  App.  68;  Dawson  v.  Railway 
Co.,  76  Mo.  514;  sixty  days,  Thompson  v.  Railroad  Co.,  22  Mo.  App.  321;  seven 
days,  Lewis  v.  Railway  Co.,  5  Hurl.  &  N.  867.  The  following  periods  have 
been  held  unreasonable:  Sixty  days  from  date  of  contract,  Pacific  Exp.  Co. 
v.  Darnell  (Tex.  Sup.)  6  S.  W.  765;  thirty  days  from  date  of  contract,  Adams 
Exp.  Co.  v.  Reagan,  29  Ind.  21;  Central  Vermont  R.  Co.  v.  Soper,  8  C.  C.  A. 
.341,  59  Fed.  879;  Southern  Exp.  Co.  v.  Caperton,  44  Ala.  101;  thirty-two  days 
from  date  of  shipment  contract,  Southern  Exp.  Co.  v.  Bank,  108  Ala.  517, 
18  South.  664.  But  see  Southern  Exp.  Co.  v.  Caldwell,  21  Wall.  264; 
Central  Vermont  R.  Co.  v.  Soper,  8  C.  C.  A.  341,  59  Fed.  879.  What  is  a  rea- 
sonable time  is  a  question  of  law  for  the  court.  Heimann  v.  Telegraph  Co., 
57  Wis.  562,  16  N.  W.  32;  Browning  v.  Railroad  Co.,  2  Daly  (N.  Y.)  117.  Fail- 
ure to  present  a  claim  within  the  stipulated  time  is  not  a  bar  to  recovery,  if 
the  failure  was  not  caused  by  the  owner's  fault.  Glenn  v.  Express  Co.,  86 
Tenn.  594,  8  S.  W.  152. 

3  Goggiu  v.  Railway  Co.,  12  Kan.  416.     Compare  Smitha  v.  Railroad  Co., 

86  Tenn.  198,  6  S.  W.  209.     As  to  what  is  removing  or  intermingling,  see  Chi- 
cago, St.  L.  &  N.  O.  R.  Co.  v.  Abels,  60  Miss.  1017.     See  generally,  The  Santee, 
2  Ben.  519,  Fed.  Cas.  No.  12,328;  Rice  v.  Railway  Co.,  63  Mo.  314;   Sprague  v. 
Railway  Co.,  34  Kan.  347,  S  Pac.  465;    Owen  v.  Railroad  Co.,  87  Ivy.  626,  9 
S.  W.  698. 

*  Capehart  v.  Railroad  Co.,  81  N.  C.  438.     See,  also,  Owen  v.  Railroad  Co., 

87  Ky.  626,  9  S.  W.  698;   Rice  v.  Railway  Co.,  63  Mo.  314;   Sprague  v.  Railway 
Co.,  34  Kan.  347,  8  Pac.  465.     Such  a  stipulation  does  not  apply  to  latent  in- 
juries, which  could  not  be  discovered  at  time  of  delivery.     Ormsby  v.  Railroad 
•Co.,  4  Fed.  170,  706;    Capehart  v.  Railroad  Co.,  77  N.  C.  355. 

0  A  requirement  that  the  claim  be  verified  by  affidavit  is  valid.     Black  v. 
Railway  Co.,  Ill  111.  351.     Cf.  International  &  G.  X.  Ry.  Co.  v.  Underwood.  62 
Tex.  21.     Notice  in  writing  to  a  particular  officer  may  be  required.     Dasvson 
v.  Railway  Co.,  76  Mo.  514. 

e  Hirshberg  v.  Dinsmore,  12  Daly  (N.  Y.)  429;   Chicago  &  A.  R.  Co.  v.  Simms, 

1  See  note  7  on  following  page. 


252  CARRIERS    OF   GOODS.  (Ch.  (> 

SAME— CONSIDERATION. 

96.  All  contracts  in  any  degree  limiting  the  liability  of  the 
carrier  are,  in  a  manner,  detractions  from  the  legal 
obligation  to  receive  and  carry  safely,  and,  to  be 
effectual,  must  be  supported  by  a  valid  considera- 
tion other  than  the  mere  undertaking  of  carriage.1 

But  an  agreement  to  do  something  to  which  the  carrier  is  not 
already  obligated  is  sufficient,  as  to  carry  at  a  reduced  rate,2  or 
to  receive  a  passenger  on  a  freight  train,3  or  to  carry  a  customer 
free  of  charge.4  When  the  rate  charged  is  fixed  by  law,  an  agree- 
ment to  carry  at  that  rate  furnishes  no  consideration  for  a  contract 
limiting  liability,5  and  the  same  is  true,  a  fortiori,  when  the  rate 
charged  is  the  highest  permitted  by  the  law.6  But,  when  the  rate 

18  111.  App.  68;  Wood  v.  Railway  Co.,  118  N.  C.  1056,  24  S.  E.  704.  But  see 
Smitha  v.  Railroad  Co.,  86  Tenn.  198,  6  S.  W.  209. 

7  Such  requirement  is  waived  where  the  carrier  has  no  officer  at  the  place 
named  to  whom  notice  could  be  given.  Good  v.  Railway  Co.  (Tex.  Sup.)  11 
S.  W.  854;  Missouri  Pac.  Ry.  Co.  v.  Harris,  67  Tex.  166,  2  S.  W.  574. 

§  96.  i  Bissell  v.  Railroad  Co.,  25  N.  Y.  442;  McMillan  v.  Railroad  Co..  16 
Mich.  79;  German  v.  Railroad  Co.,  38  Iowa,  127.  See,  also,  Missouri,  K.  &  T. 
Ry.  Co.  v.  Carter,  9  Tex.  Civ.  App.  677,  29  S.  W.  565;  Kansas  Pac.  Ry.  Co.  v. 
Reynolds,  17  Kan.  251;  Kellerinan  v.  Railroad  Co.,  136  Mo.  177,  34  S.  W.  41. 
and  37  S.  W.  828;  San  Antonio  &  A.  P.  Ry.  Co.  v.  Barnett,  12  Tex.  Civ.  App. 
321,  34  S.  W.  139.  A  common  carrier  has  no  right  to  demand  of  a  shipper 
a  waiver  of  his  rights  as  a  condition  precedent  to  receiving  freight.  Missouri 
Pac.  Ry.  Co.  v.  Fagan,  72  Tex.  127,  9  S.  W.  749. 

2  Bissell  v.  Railroad  Co.,  25  N.  Y.  442;  Nelson  v.  Railroad  Co..  48  X.  Y.  498; 
Jennings  v.  Railway  Co.  (Sup.)  5  N.  Y.  Supp.  140;  Dillard  v.  Railroad  Co..  2 
Lea  (Teun.)  288;  Stewart  v.  Railway  Co.,  21  Ind.  App.  218,  52  N.  E.  89; 
Berry  v.  Railroad  Co.,  44  W.  Ya.  538,  30  S.  E.  143:  Baltimore  &  O.  S.  W. 
Ry.  Co.  v.  Crawford,  65  111.  App.  113.  A  stipulation,  in  a  bill  of  lading,  ex- 
empting the  receiving  carrier  from  its  common-law  liability  for  the  loss  of 
goods  while  in  its  warehouse  at  the  end  of  its  line,  and  before  delivering  to  the 
connecting  carrier,  is  void,  unless  there  is  a  special  consideration  for  such  ex- 
emption, other  than  the  mere  receipt  of  the  goods,  and  the  undertaking  to- 
carry  them.  Wehmann  v.  Railway  Co.,  58  Minn.  22,  59  N.  W.  546. 

»  Arnold  v.  Railroad  Co.,  83  111.  273. 

*  Bissell  v.  Railroad  Co.,  25  N.  Y.  442. 

s  Wehmann  v.  Railway  Co.,  58  Minn.  22,  59  N.  W.  546. 

«  See  cases  cited  in  section  96,  note   1,  supra. 


§    97)  CONSTRUCTION    OF    LIMITING    CONTRACTS.  253 

charged  is  the  usual  tariff  to  all  coiners,  it  does  not  follow  that 
it  is  not  a  reduced  rate,  and  it  will  be  a  sufficient  consideration 
to  support  the  agreement  limiting  the  liability,  provided  the  car- 
rier might  have  lawfully  charged  a  higher  rate.7 

CONSTRUCTION  OF  LIMITING  CONTRACTS. 

97;  Contracts  in  limitation  of  liability  are  to  be  construed 
strictly  against  the  carrier,1  giving  the  shipper  the 
benefit  of  all  doubts  and  ambiguities.2 

And  so,  if  the  carrier  has  given  two  notices,  he  will  be  bound 
by  the  one  least  favorable  to  himself.3  Nor  will  a  general  clause 
be  permitted  to  enlarge  specific  exemptions.  For  example,  a  re- 
lease from  liability  for  loss  arising  from  "leakage  or  decay,  chafing 
or  breakage,  or  from  any  other  cause,",  does  not  exempt  the  car- 
rier from  liability  for  loss  by  fire.*  A  general  exemption  from  lia- 
bility for  loss  will  not  include  losses  occurring  through  negligence.5 

The  lex  loci  contractus  determines  the  validity  of  contracts  lim- 
iting liability.8  But  the  existence  of  the  contract,  the  admission 

7  Duvenick  v.  Railroad  Co.,  57  Mo.  App.  550.  But  see  Hance  v.  Railway  Co., 
56  Mo.  App.  476. 

§  97.  i  Magnin  v.  Dinsmore,  56  N.  Y.  168;  Edsall  v.  Transportation  Co., 
50  X.  Y.  661;  Hooper  v.  Wells,  Fargo  &  Co.,  27  Cal.  11;  Levering  v.  Insurance 
Co.,  42  Mo.  88;  Rosenfeld  v.  Railroad  Co.,  103  Ind.  121,  2  N.  E.  344;  St.  Louis 
&  S.  E.  R.  Co.  v.  Smuck,  49  Ind.  302;  Gronstadt  v.  Witthoff,  15  Fed.  265; 
Marx  v.  Steamship  Co.,  22  Fed.  680;  Ayres  v.  Railroad  Corp.,  14  BlatcM.  9f 
Fed.  Cas.  No.  689. 

2  Kansas  City,  M.  &  B.  R.  Co.  v.  Holland,  68  Miss.  351,  8  South.  516;  Black 
v.  Transportation  Co.,  55  Wis.  319,  13  N.  W.  244;  Little  Rock,'  M.  R.  &  T. 
Ry.  Co.  v.  Talbot,  39  Ark.  523. 

s  Munii  v.  Baker,  2  Starkie,  255.  And  see  Edsall  v.  Transportation  Co.,  50 
N.  Y.  GG1;  Airey  v.  Merrill,  2  Curt.  8,  Fed.  Cas.  No.  115. 

4  Menzell  v.  Railroad  Co.,  1  Dill.  531,  Fed.  Cas.  No.  9,429.  See,  also,  Hawkins 
v.  Railroad  Co.,  17  Mich.  57. 

s  Aslmiore  v.  Transportation  Co.,  28  N.  J.  Law,  180;  Mynard  v.  Railroad 
Co.,  71  N.  Y.  180.  But  see  Cragin  v.  Railroad  Co.,  51  N.  Y.  61. 

o  Talbott  v.  Transportation  Co.,  41  Iowa,  247;  Fonseca  v.  Steamship  Co.,  153 
Mass.  553,  27  N.  E.  665;  Hoadley  v.  Transportation  Co.,  115  Mass.  304;  West- 
ern &  A.  R.  Co.  v.  Cotton  Mills,  81  Ga.  522,  7  S.  E.  916;  McDaniel  v.  Railway 
Co.,  24  Iowa,  412;  Caiitu  v.  Bennett,  39  Tex.  303;  First  Nat.  Bank  of  Toledo 


254  CARRIERS    OF    GOODS.  (Ch.  6 

of  evidence,  and  the  remedy  upon  the  contract  are  matters  con- 
trolled by  the  lex  fori.7 

SAME— NOTICES  LIMITING  LIABILITY. 

98.  Notices  limiting  liability,  to  be  effectual,  must  receive 
the  assent  of  the  shipper;  and  such  assent  cannot  be 
inferred  from  a  mere  knowledge,  folio-wed  by  a  de- 
livery of  the  goods  to  the  carrier. 

In  considering  the  various  forms  of  notices  employed  by  common 
carriers  to  limit  their  liability,  and  their  legal  effect,  it  must  be  re- 
membered that  the  carrier  has  no  right  to  refuse  goods  properly 
offered  for  carriage.  Subject  to  certain  reasonable  regulations, 
every  man  has  a  right  to  insist  that  his  property,  if  classed  as  car- 
riageable goods,  shall  be  transported  subject  to  the  carrier's  com- 
mon-law liability.  The  carrier  cannot  impose  a  stipulation  of  re- 
duced liability  as  a  condition  precedent  to  their  reception  and  car- 
riage. The  owner  can  insist  that  they  be  received  subject  to  all 
the  risks  and  responsibilities  that  the  law  annexes  to  the  carrier's 
employment.1  It  is  therefore  apparent  that  the  carrier  cannot  de- 
vest  himself  of  his  legal  obligations  by  any  act  of  his  own  which 
is  purely  ex  parte.  And  if  it  appear  that  a  restrictive  notice  has 
actually  been  seen  by  the  shipper,  no  presumption  is  thereby  raised 
that  he  assents  to  its  terms.  It  is  equally  inferable  that  he  has 
the  intention  to  insist  on  his  legal  rights,  and  the  burden  is  on  the 
carrier  to  establish  the  contract  qualifying  his  liability.2  "Conced- 

v.  Shaw,  61  N.  Y.  283;  Brockway  v.  Express  Co.,  168  Mass.  257,  47  N.  E.  87; 
Texas  &  P.  Ry.  Co.  v.  Payne  (Tex.  Civ.  App.)  38  S.  W.  366.  But  see  Chi- 
cago, B.  &  Q."  R.  Co.  v.  Gardiner,  51  Neb.  70,  70  N.  W.  508.  Compare  Dyke 
v.  Railway  Co.,  45  N.  Y.  113;  Curtis  v.  Railroad  Co.,  74  N.  Y.  116. 

7  Hoadley  v.  Transportation  Co.,  115  Mass.  304.  And  see  Faulkner  v.  Hart, 
82  X.  Y.  413. 

§  98.  i  See  Hollister  v.  Nowlen,  19  Wend.  (N.  Y.)  234;  Cole  v.  Goodwin,  Id. 
251;  Jones  v.  Voorhees,  10  Ohio,  145;  Bennett  v.  Button,  10  N.  H.  481,  487; 
New  Jersey  Stearn  Nav.  Co.  v.  Merchants'  Bank,  6  How.  344,  382;  Moses 
v.  Railroad  Co.,  24  N.  H.  71;  Kiniball  v.  Railroad  Co.,  26  Vt.  247,  at  page 
256;  Dorr  v.  Navigation  Co.,  4  Sandf.  (N.  Y.)  136;  Id.,  11  N.  Y.  485;  Michigan 
Cent.  R.  Co.  v.  Hale,  6  Mich.  243;  Slocum  v.  Fairchild,  7  Hill  (N.  Y.)  292. 

2  McMillan  v.  Railroad  Co.,  10  Mich.  79,  111;  New  Jersey  Steam  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  344,  383. 


§    98)  NOTICES    LIMITING    LIABILITY.  .  255 

ing  that  there  may  be  a  special  contract  for  restricted  liability, 
such  a  contract  cannot,  I  think,  be  inferred  from  a  general  notice 
brought  home  to  the  employer.'  The  argument  is  that,  where  a  party 
delivers  goods  to  be  carried,  after  seeing  a  notice  that  the  carrier 
intends  to  limit  his  responsibility,  his  assent  to  the  terms  of  the 
notice  may  be  implied.  But  this  argument  entirely  overlooks  a  very 
important  consideration.  Notwithstanding  the  notice,  the  owner 
lias  a  right  to  insist  that  the  carrier  shall  receive  the  goods  subject 
to  all  the  responsibilities  incident  to  his  employment.  If  the  deliv- 
ery of  goods  under  such  circumstances  authorizes  an  implication  of 
any  kind,  the  presumption  is  as  strong,  to  say  the  least,  that  the 
owner  intended  to  insist  on  his  legal  rights,  as  it  is  that  he  was 
willing  to  yield  to  the  wishes  of  the  carrier.  If  a  coat  be  ordered 
from  a  mechanic  after  he  has  given  the  customer  notice  that  he 
will  not  furnish  the  article  at  a  less  price  than  $100,  the  assent  of 
the  customer  to  pay  that  sum,  though  it  be  double  the  value,  may, 
perhaps,  be  implied;  but  if  the  mechanic  had  been  under  a  legal 
obligation  not  only  to  furnish  the  coat,  but  to  do  so  at  a  reasonable 
price,  no  such  implication  would  arise.  Now,  the  carrier  is  under 
a  legal  obligation  to  receive  and  convey  the  goods  safely,  or  answer 
for  the  loss.  He  has  no  right  to  prescribe  any  other  terms;  and 
a  notice  can,  at  the  most,  only  amount  to  a  proposal  for  a  special 
contract,  which  requires  the  assent  of  the  other  party.  Putting  the 
matter  in  the  most  favorable  light  for  the  carrier,  the  mere  delivery 
of  goods  after  seeing  a  notice  cannot  warrant  a  stronger  presump- 
tion that  the  owner  intended  to  assent  to  a  restricted  liability  on 
the  part  of  the  carrier  than  it  does  that  he  intended  to  insist  on 
the  liabilities  imposed  by  law;  and  a  special  contract  cannot  be  im- 
plied where  there  is  such  an  equipoise  of  probabilities."3 

What  Constitutes  Assent. 

A  notice  amounts  to  nothing  more  than  a  proposition  which 
can  ripen  into  a  contract  only  when  followed  by  assent.  A  pre- 
requisite to  assent  is,  of  course,  a  knowledge  of  the  terms  and  con- 
ditions contained  in  the  notice.  Various  methods  have  been  adopted 
by  the  carrier  for  placing  notices  before  the  shipper,  and  bringing 

s  Hollister  v.  Nowlen,  19  Wend.  (X.  Y.)  234,  247.  See,  also,  Merchants' 
Dispatch  Transp.  Co.  v.  Furtliinann,  149  111.  G6,  36  N.  E.  624;  Schulze-Berge  v. 
The  Guildhall,  58  Fed.  796;  Wabash  R.  Co.  v.  Harris,  55  111.  App.  159. 


256  CARRIERS    OF    GOODS.  (Ch.   G 

home  to  him  a  knowledge  of  their  contents,  such  as  advertisements 
in  newspapers,  posting  notices,  or  printing  them  upon  bills  of  lading, 
receipts,  tickets,  and  the  like.  As  there  is  no  presumption  that 
even  a  person  who  takes  a  newspaper  reads  all  its  contents,  this 
method  has  been  abandoned  as  impracticable.4  The  same  objec- 
tion applies  to  notices  by  means  of  signs,  posters,  handbills,  and 
the  like.  A  person  may  see  a  sign  without  reading  it.5 

Same — Bills  of  Lading. 

Delivery  to  and  acceptance  by  a  shipper  of  a  bill  of  lading  or 
shipping  receipt  will  constitute  a  contract  as  to  the  stipulations 
affecting  the  terms  of  shipment,  although  no  express  assent  to 
such  terms  is  shown.6  The  explanation  for  this  seeming  exception 
is  not  entirely  satisfactory,  depending,  as  it  does,  on  the  presump- 
tion that  persons  receiving  them  must  know,  from  their  uniform 
character  and  the  nature  of  the  business,  that  they  contain  the 
terms  upon  which  the  property  is  to  be  carried.7  To  be  binding  upon 
the  shipper,  the  receipt  or  bill  must  be  delivered  before  transporta- 
tion has  commenced,  and  while  it  is  still  in  his  power  to  recall  the 
goods.8  But  if  the  shipper  knew  the  contents  of  similar  bills  or  re- 
ceipts issued  by  the  carrier,  and  his  custom  to  deliver  them  after 

*  Michigan  Cent.  R.  Co.  v.  Hale,  6  Mich.  243;  Barney  v.  Prentiss,  4  Har. 
&  J.  (Md.)  317;  Judson  v.  Railroad  Corp.,  G  Allen  (Mass.)  48G;  Baldwin  v.  Col- 
lins, 9  Rob.  (La.)  468;  Rowley  v.  Home,  3  Bing.  2;  Munn  v.  Baker,  2  Starkie, 
255. 

s  Clayton  v.  Hunt,  3  Camp.  27;  Hollister  v.  Xowlen,  19  Wend.  (X.  Y.)  234; 
Gleason  v.  Transportation  Co.,  32  Wis.  85;  Lake  Shore  &  M.  S.  Ry.  Co.  v. 
Greenwood,  79  Pa.  St.  373;  Cantling  v.  Railroad  Co.,  54  Mo.  3S5;  Butler  v. 
Heane,  2  Camp.  415;  Brooke  v.  Pickwick,  4  Bing.  218;  Kerr  v.  Willan.  6 
Maule  &  S.  150,  2  Starkie,  53. 

«  Grace  v.  Adams,  100  Mass.  505;  Mulligan  v.  Railway  Co.,  36  Iowa,  181; 
Kirkland  v.  Dinsmore,  62  N.  Y.  171;  Anchor  Line  v.  Dater,  68  111.  369;  even 
though  he  neglects  to  read  its  terms,  Davis  v.  Railroad  Co.,  66  Vt.  290,  29  Atl. 
313.  Acceptance  of  a  bill  of  lading  is  not  conclusive  evidence  that  the  shipper 
assented  to  a  stipulation  limiting  the  carrier's  liability  to  his  own  line. 
Wabash  R.  Co.  v.  Harris,  55  111.  App.  159;  Chicago  &  N.  W.  Ry.  Co.  v.  Simon, 
160  111.  648,  43  N.  E.  596.  See,  also,  Schulze-Berge  v.  The  Guildhall,  58  Fed. 
796. 

7  Blossom  v.  Dodd,  43  N.  Y.  264,  2G9. 

s  Wilde  v.  Transportation  Co.,  47  Iowa,  247:  Merchants'  Dispatch  Transp.  Co. 
v.  Furthmann,  149  111.  66,  36  N.  E.  624,  affirming  47  111.  App.  561;  Michigan 
Cent.  R.  Co.  v.  Boyd,  91  111.  268. 


§    98)  NOTICES    LIMITING    LIABILITY.  257 

shipment,  he  would  be  bound.9  "Bills  of  lading  are  signed  by  the 
carrier  only,  and,  where  a  contract  is  to  be  signed  only  by  one 
party,  the  evidence  of  assent  to  its  terms  by  the  other  party  con- 
sists usually  in  his  receiving  and  acting  upon  it.  This  is  the  case 
with  deeds  poll,  and  with  various  classes  of  familiar  contracts, 
and  the  evidence  of  assent  derived  from  the  acceptance  of  the  con- 
tract without  objection  is  commonly  conclusive.  I  do  not  perceive 
that  bills  of  lading  stand  upon  any  different  footing.  If  the  car- 
rier should  cause  limitations  upon  his  liability  to  be  inserted  in 
the  contract  in  such  a  manner  as  not  to  attract  the  consignor's  at- 
tention, the  question  of  assent  might  fairly  be  considered  an  open 
one; 10  and,  if  delivery  of  the  bill  of  lading  was  made  to  the  con- 
signor under  such  circumstances  as  to  lead  him  to  suppose  it  to 
be  something  else, — as,  for  instance,  a  mere  receipt  for  money, — 
it  could  not  be  held  binding  upon  him  as  a  contract,  inasmuch  as 
it  had  never  been  delivered  to  and  accepted  by  him  as  such.11  But, 
except  in  these  and  similar  cases,  it  cannot  become  a  material 
question  whether  the  consignor  read  the  bill  of  lading  or  not."  12 

S  im.e — Express  Receipts. 

It  was  formerly  held  that  the  mere  acceptance  of  express  re- 
ceipts, unless  the  terms  were  read  and  assented  to  by  the  shipper, 
did  not  amount  to  a  contract,13  but  they  now  occupy  the  same  po- 
sition as  bills  of  lading,  and,  when  accepted  without  objection,  con- 
stitute the  contract  between  the  parties.1* 

s  Shelton  v.  Transportation  Co.,  59  N.  Y.  258. 

10  Brown  v.  Railroad  Co.,  11  Gush.  (Mass.)  97. 

11  King  v.  Woodbridge,  34  Vt.  565. 

12  McMillan  v.  Railroad  Co.,  16  Mich.  79.     But  where  the  notice  Is  printed 
on  the  back  of  the  paper,  and  not  in  and  as  a  part  of  the  proposed  contract, 
assent  is  not  implied  by  acceptance.     Michigan  Cent.  R.  Co.  v.  Mineral  Springs 
Mfg.  Co.,  16  Wall.  318;   Michigan  Cent.  R.  Co.  v.  Hale,  6  Mich.  243;   The  Isa- 
bella, 8  Ben.  139,  Fed.  Cas.  No.  7,099;    Newell  v.  Smith,  49  Vt.  255;    Ayres  v. 
Railroad  Corp.,  14  Blatchf.  9,  Fed.  Cas.  No.  689. 

is  Kirkland  v.  Dinsuiore,  2  Hun  (N.  Y.)  46,  4  Thomp.  &  C.  (N.  Y.)  304.  re- 
versed 62  N.  Y.  171;  Belger  v.  Dinsmore,  51  Barb.  (N.  Y.)  69,  reversed  51 
N.  Y.  1G6;  Adams  Exp.  Co.  v.  Nock,  2  Duv.  (Ky.)  562;  Kember  v.  Express  Co., 
22  La.  Ann.  158. 

i*  Huntington  v.  Dinsmore,  4  Hun  (N.  Y.)  66,  6  Thomp.  &  C.  (N.  Y.)  195; 
Snider  v.  Express  Co.,  63  Mo.  376;  Soumet  v.  Express  Co.,  66  Barb.  (N.  Y.I 
2S4;  Brelime  v.  Express  Co.,  25  Md.  3,28;  Christenson  v.  Express  Co.,  15 
BAR.NEG.— 17 


258  CARRIERS    OF   GOODS.  (Ch.  6 

Same — Tickets,  Baggage  Checks,  Receipts,  Etc. 

Transportation  tickets  and  baggage  checks  do  not  stand  upon 
the  same  footing  with  bills  of  lading  in  respect  to  conditions  and 
limitations  printed  and  stamped  upon  them,  and  assent  is  not  pre- 
sumed from  mere  acceptance  without  objection.16  Tickets  and  bag- 
gage checks  are  not  in  the  nature  of  contracts,  or  even  receipts, 
but  are  merely  tokens  or  vouchers  adopted  for  convenience.16  Con- 
sequently they  cannot  be  presumed  to  embody  the  terms  upon  which 
the  property  is  shipped,  and  as  limiting  the  liability  of  the  carrier. 
Therefore  a  passenger  is  not  bound  by  a  notice  printed  upon  the 
face  of  his  ticket,  limiting  the  weight  and  value  of  his  baggage, 
unless  his  attention  is  called  to  the  notice,  or  he  is  aware  of  it  at 
the  time  his  ticket  is  purchased; 17  -nor  even  then,  unless  he  assents 
to  it,18  although  such  assent  might  possibly  be  implied  from  ac- 
ceptance without  objection.19  Where  a  printed  receipt  containing 

Minn.  270  (Gil.  208);  Kirkland  v.  Dinsmore,  62  N.  Y.  171;  Belger  v.  Dins- 
more,  51  N.  Y.  166;  Magnin  v.  Dinsmore,  56  N.  Y.  168;  Westcott  v.  Fargo,  61 
X.  Y.  542;  Adams  Exp.  Co.  v.  Haynes,  42  111.  89;  Merchants'  Dispatch  Transp. 
Co.  v.  Leysor,  89  111.  43;  Grace  v.  Adams,  100  Mass.  505;  Boorman  v.  Express 
Co.,  21  Wis.  154.  But  see  Adams  Express  Co.  v.  Stettaners,  61  111.  184;  Ameri- 
can Merchants  Union  Exp.  Co.  v.  Schier,  55  111.  140.  In  ILLINOIS  carriers 
are  forbidden  to  limit  their  liability  by  stipulation  in  the  receipt  given  for  the 
property.  But  see  Illinois  Cent.  R.  Co.  v.  Jonte,  13  111.  App.  424.  In  DAKOTA 
and  MICHIGAN  the  shipper's  assent  is,  by  statute,  required  to  be  shown  by 
his  signature.  Hartwell  v.  Express  Co.,  5  Dak.  463,  41  N.  W.  732;  Feige  v. 
Railroad  Co.,  62  Mich.  1,  28  N.  W.  685. 

is  Prentice  v.  Decker,  49  Barb.  (N.  Y.)  21;  Limburger  v.  Westcott,  Id.  283; 
Sunderland  v.  Westcott,  2  Sweeny  (N.  Y.)  260;  Isaacson  v.  Railroad  Co.,  94 
N.  Y.  278;  Lechowitzer  v.  Packet  Co.,  6  Misc.  Rep.  536,  27  N.  Y.  Supp.  140. 

is  Rawson  v.  Railroad  Co.,  48  N.  Y.  212.  Cf.  Baltimore  &  0.  R.  Co.  v. 
Campbell,  36  Ohio  St.  647. 

17  Rawson  v.  Railroad  Co.,  48  N.  Y.  212;  Mauritz  v.  Railroad  Co.,  23  Fed. 
765;  Nevins  v.  Steamboat  Co.,  4  Bosw.  (N.  Y.)  225;  San  Antonio  &  A.  P.  Ry. 
Co.  v.  Newman  (Tex.)  43  S.  W.  915;  Wiegand  v.  Railroad  Co.,  75  Fed.  370. 
But  a  "contract  ticket,"  issued  by  a  steamship  company,  containing  two  quarto 
papers  of  printed  matter  describing  the  rights  and  liabilities  of  the  parties. 
binds  the  party  to  its  stipulations,  although  he  has  neither  read  nor  sigued  it. 
Fonseca  v.  Steamship  Co.,  153  Mass.  553,  27  N.  E.  665. 

"Baltimore  &  O.  R.  Co.  v.  Campbell,  36  Ohio  St  647;  Indianapolis  &  C. 
R.  Co.  v.  Cox,  29  Ind.  360,  95  Am.  Dec.  640;  Kansas  City,  St  J.  &  C.  B. 
R.  Co.  v.  Rodebaugh,  38  Kan.  45,  15  Pac.  899. 

i»  Rawson  v.  Railroad  Co.,  48  N.  Y.  212. 


§    99)  ACTUAL    NOTICE    OF    KEASONABLE    RULES.  25S1 

a  condition  limiting  liability  was  given  plaintiff  by  the  agent  olT 
a  baggage  express  company  in  exchange  for  a  baggage  check,  the* 
plaintiff  was  held  not  bound  thereby.  Andrews,  J.,  in  delivering: 
the  opinion  of  the  court,  said:  "When  a  contract  is  required  to- 
be  in  writing,  and  a  party  receives  a  paper  as  a  contract,  or  wheife 
he  knows,  or  has  reason  to  suppose,  that  a  paper  delivered  to  hirr* 
contains  the  terms  of  a  special  contract,  he  is  bound  to  acquaint 
himself  with  its  contents;  and,  if  he  accepts  and  retains  it,  he- 
will  be  bound  by  it,  although  he  did  not  read  it.  But  this  rule  can- 
not, for  the  reasons  stated,  be  applied  to  this  case,  and  the  court 
properly  refused  to  charge,  as  matter  of  law,  that  the  delivery  of: 
the  receipt  created  a  contract  for  the  carriage  of  the  trunk,  undef 
its  terms.  The  question  whether,  in  a  particular  case,  a  party  re- 
ceiving such  a  receipt  accepted  it  with  notice  of  its  contents,  is.' 
one  of  evidence,  to  be  determined  by  the  jury.  The  fact  of  notice; 
may  be  proved  by  direct  or  circumstantial  evidence."  20 

SAME— ACTUAL  NOTICE  OF  REASONABLE  RULES: 

99.  The  shipper  -will  be  bound,  even  without  his  assent,  by- 
actual  notice  of  reasonable  regulations  and  require- 
ments to  furnish  information  necessary  for  fixing 
rates  and  other-wise  properly  conducting  the  busi- 
ness. 

In  the  proper  regulation  of  his  business,  the  carrier  may  give  gei*- 
eral  notice  to  all  his  employers,  requiring  them  to  observe  the  meth- 
ods employed,  and  to  give  information  concerning  the  nature  anct 
value  of  the  goods  delivered  for  shipment.  These  are  but  reason- 
able regulations,  which  every  man  should  be  allowed  to  establish 
for  the  proper  conduct  of  his  business,  to  insure  regularity  anol 
promptness,  and  to  properly  inform  him  of  the  responsibility  he- 
assumes.1  The  shipper  is  bound  by  the  terms  of  notices  of  this 
class  without  his  assent.  The  right  of  the  carrier  to  graduate  his 
charges  according  to  the  value  of  the  goods  and  the  risk  involved,*" 

20  Madan  v.  Sherard,  73  N.  Y.  329. 
§  99.     i  McMillan  v.  Railroad  Co.,  16  Mich.  79,  110. 

2  Gibbon  v.  Payntou,  4  Burrows,  2298  (per  Lord  Mansfield  and  Ashton,  3.)^: 
Tyly  v.  Morrice,  CarUi.  485;-  Southern  Exp.  Co.  v.  Newby,  36  Ga.  G35;  Batsoia. 


2GO  CARRIK15S    OF    GOODS.  (Cll.   G 

and  the  fraud  and  injury  which  would  be  worked  upon  him  by 
withholding  information  essential  to  fixing  the  amount  of  reason- 
able compensation  and  determining  the  degree  of  care  and  diligence 
to  be  exercised  in  the  carriage,3  are  the  foundation  of  this  doctrine. 
"This  would  not  seem  to  be  any  infringement  upon  the  principle 
of  the  ancient  rule.  He  must  have  a  right  to  know  what  it  is  that 
he  undertakes  to  carry,  and  the  amount  and  extent  of  his  risk. 
We  can  see  nothing  that  ought  to  prevent  him  from  requiring  no- 
tice of  the  value  of  the  commodity  delivered  to  him,  when,  from 
its  nature,  or  the  shape  or  condition  in  which  he  receives  it,  he  may 
need  the  information;  nor  why  he  should  not  insist  on  being  paid 
in  proportion  to  the  value  of  the  goods,  and  the  consequent  amount 
of  his  risk."  * 

As  has  been  already  stated,  in  the  absence  of  inquiries  by  the 
carrier,  the  shipper  is  not  bound  to  disclose  the  character  or  value 
of  the  goods,  but  must  answer  truly,  if  interrogated.5  The  object 
and  effect  of  notices  of  this  class  is  to  dispense  with  the  necessity 
for  a  special  inquiry  in  each  case.6  "If  he  has  given  general  notice 
that  he  will  not  be  liable,  over  a  certain  amount,  unless  the  value 
is  made  known  to  him  at  the  time  of  delivery,  and  a  premium  for 
insurance  paid,  such  notice,  if  brought  home  to  the  knowledge  of 
the  owner,  is  as  effectual  in  qualifying  the  acceptance  of  the  goods 
as  a  special  agreement;  and  the  owner,  at  his  peril,  must  disclose 
the  value  and  pay  the  premium.  The  carrier,  in  such  case,  is  not 
bound  to  make  the  inquiry;  and,  if  the  owner  omits  to  make  known 
the  value,  and  does  not,  therefore,  pay  'the  premium  at  the  time  of 
delivery,  it  is  considered  as  dealing  unfairly  with  the  carrier,  and 
he  is  liable  only  to  the  amount  mentioned  in  his  notice,  or  not  at 
all,  according  to  the  terms  of  his  notice."  7 

v.  Donovan,  4  Barn.  &  Aid.  21;  Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.) 
85,  116. 

s  Fish  v.  Chapman,  2  Ga.  349;  Cole  v.  Goodwin,  19  Wend.  (N.  Y.)  251;  Jud- 
son  v.  Railroad  Corp.,  6  Allen  (Mass.)  486;  Magnin  v.  Dinsmore,  62  N.  Y. 
35;  Hopkins  v.  Westcott,  6  Blatchf.  64,  Fed.  Cas.  No.  6,692;  New  Jersey  Steam 
Nav.  Co.  v.  Bank,  6  How.  344;  Farmers'  &  Mechanics'  Bank  v.  Champlain 
Transp.  Co.,  23  Vt.  186. 

*  Moses  v.  Railroad  Co.,  24  N.  H.  71,  91. 

s  See  ante,  p.  248. 

«  Pntson  v.  Donovan,  4  Barn.  &  Aid.  21,  28. 

7  Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.)  85,  114. 


5  101)  LIVE  STOCK.  261 

When  the  same  bill  or  receipt  contains  both  kinds  of  notices, — 
the  one  of  reasonable  regulations,  and  valid  without  assent,  and 
the  other  limiting  liability,  and  not  valid  without  assent, — they  are 
severable,  and  the  one  may  be  enforced  and  the  other  rejected.8 

SPECIAL  CLASSES  OF  GOODS. 

100.  Within  certain  limitations,  it  is  the  duty  of  the  com- 

mon carrier  to  transport  all  goods  offered.  Certain 
classes  of  property,  however,  possess  such  marked 
peculiarities  that  they  require  separate  considera- 
tion. These  are: 

(a)  Live  stock. 

(b)  Baggage. 

SAME— LIVE  STOCK. 

101.  The  nature  of  the  goods  carried   does  not  determine 

the  character  of  the  transportation,  and  the  carrier 
of  live  stock  is  a  common  carrier  wherever  he  would 
be  such  if  carrying  other  goods.  But  he  is  liable 
for  injuries  by  reason  of  the  vitality  of  the  freight, 
only  where  they  occur  through  his  negligence. 

The  extension  of  the  common-law  liability  of  common  carriers  to 
carriers  of  live  animals  involves  a  question  on  which,  a  conflict  of 
opinion  exists.  Its  decision  is  of  great  importance,  as  it  involves 
the  placing  of  the  burden  of  proof  in  cases  where  damages  are 
claimed  for  loss  or  injury.1  If  the  liability  of  the  defendant  is  not 
that  of  a  common  carrier,  the  burden  is  on  the  plaintiff  to  show 
that  the  loss  occurred  through  the  negligence  of  the  carrier.  If, 
however,  the  defendant  is  liable  as  a  common  carrier,  the  burden 
is  on  him  to  show  that,  without  negligence,  the  loss  occurred  by 
reason  of  one  of  the  excepted  perils.  As  the  question  most  fre- 
quently arises  in  connection  with  railroads,  which  are  created  com- 
mon carriers  by  their  organic  acts,  the  decision  of  the  matter  is 

s  Oppenheimer  v.  Express  Co.,  69  111.  62;  Moses  v.  Railroad  Co.,  24  N.  H.  71; 
The  Majestic,  9  C.  C.  A.  101.  GO  Fed.  624. 

§§  100-101.     i  Kansas  Fac.  Ky.  Co.  v.  Reynolds,  S  Kan.  623. 


;262  CARRIERS  OF  GOODS.  (Ch.  6 

.^furthermore  important  in  determining  whether  they  are  obligated 
to  carry  live  stock  for  all  who  offer. 

The  weight  of  authority  supports  the  proposition  that  carriers 
of  live  stock  are  common  carriers,  and  liable  as  such  whenever  a 
^carrier  of  other  freight  would  be,  in  similar  circumstances.2     The 
.leading  case  in  support  of  this  view  is  that  of  Kansas  Pac.  By.  Co. 
"v.  Nichols,3  in  which  the  court  said:     'That  railroads  are  created 
•common  carriers  of  some  kind  we  believe  is  the  universal  doctrine 
of  all  courts.     The  main  question  is  always  whether  they  are  corn- 
anon  carriers  of  the  particular  thing  then  under  consideration.     The 
question  in  this  case  is  whether  they  are  common  carriers  of  cattle. 
"So  far  as  our  statutes  are  concerned,  no  distinction  is  made  be- 
tween the  carrying  of  cattle  and  that  of  any  other  kind  of  property. 
Under  our  statutes  a  railroad  may  as  well  be  a  common  carrier 
of  cattle  as  of  goods,  wares,  and  merchandise,  or  of  any  other  kind 
>*>f  property.     Now,  as  no  distinction  has  been  made  by  statute  be- 
tween the  carrying  of  the  different  kinds  of  property,  we  would 
infer  that  railroads  were  created  for  the  purpose  of  being  common 
carriers  of  all  kinds  of  property  which  the  wants  or  needs  of  the 
public  require  to  be  carried,  and  which  can  be  carried  by  the  rail- 
;roads;  and  particularly  we  w7ould  infer  that  railroads  were  created 
::for  the  purpose  of  being  common  carriers  of  cattle.     *     *     *     It 

2  Mynard  v.  Railroad  Co.,  71  N.  Y.  180;  Cragin  v.  Railroad  Co.,  51  N.  Y. 
61;  Perm  v.  Railroad  Co.,  49  N.  Y.  204;  Conger  v.  Railroad  Co.,  6  Duer  (N.  Y.) 
375;  Clarke  v.  Railroad  Co.,  14  N.  Y.  570;  Harris  v.  Railroad  Co.,  20  N.  Y. 
.:232;  St.  Louis  &  S.  E.  Ry.  Co.  v.  Dorman,  72  111.  504;  Ohio  &  M.  R.  Co.  v. 
Dunbar,  20  111.  624;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Harmon,  12  111.  App.  54; 
-Ayres  v.  Railroad  Co.,  71  Wis.  372,  37  N.  W.  432;  Evans  v.  Railroad  Co.,  Ill 
:Mass.  142;  Rixford  v.  Smith,  52  N.  H.  355;  Kinnick  v.  Railroad  Co.,  69  Iowa, 
665,  29  N.  W.  772;  McCoy  v.  Railroad  Co.,  44  Iowa,  424;  German  v.  Rail- 
aroad  Co.,  38  Iowa,  127;  Powell  v.  Railroad  Co.,  32  Pa.  St  414;  Atchison  & 
:N.  R.  Co.  v.  Washburn,  5  Neb.  117;  Porterfield  v.  Humphreys,  8  Humph. 
<Tenn.)  497;  Wilson  v.  Hamilton,  4  Ohio  St.  722;  Welsh  v.  Railroad  Co., 
^0  Ohio  St.  65;  South  &  N.  A.  R.  Co.  v.  Henlein,  52  Ala.  606;  Kimball  v. 
; Railroad  Co.,  26  Vt.  247;  Moulton  y.  Railway  Co.,  31  Minn.  85,  16  N.  W. 
497;  Agnew  v.  The  Contra  Costa,  27  Cal.  425;  Lindsley  v.  Railway  Co.,  36 
Minn.  539,  33  N.  W.  7;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Trawiok,  68  Tex.  314, 
-4  S.  W.  567;  Myrick  v.  Railroad  Co.,  107  U.  S.  102,  1  Sup.  Ct.  425;  Brown  v. 
Railroad  Co.,  18  Mo.  App.  569;  McFadden  v.  Railway  Co.,  92  Mo.  343,  4  S. 
IV.  689.  And  see  Jag.  Torts,  p.  1073. 

-»  9  Kan.  235. 


§101)  LIVE    STOCK.  263 

is  claimed,  however,  that  'the  transportation  of  cattle  and  live 
stock  by  common  carriers  by  land  was  unknown  to  the  common 
law.'  Suppose  it  was;  what  does  that  prove?  The  transportation 
of  thousands  of  other  kinds  of  property,  either  by  land  or  water, 
was  unknown  to  the  common  lawr,  and  yet  such  kinds  of  property 
are  now  carried  by  common  carriers  and  by  railroads  every  day. 
*  *  *  The  reason  why  cattle  and  live  stock  were  not  transported 
by  land  by  common  carriers,  at  common  law,  was  because  no  com- 
mon carrier,  at  the  time  our  common  law  was  formed,  had  any 
convenient  means  for  such  transportation.  Among  the  other  kinds 
of  property  not  transported  by  common  carriers,  either  by  land 
or  water,  at  the  time  our  common  law  was  formed,  are  the  fol- 
lowing: Keapers,  mowers,  wheat  drills,  corn  planters,  cultivators, 
threshing  machines,  corn  shellers,  gypsum,  guano,  Indian  corn,  po- 
tatoes, tobacco,  stoves,  steam  engines,  sewing  machines,  washing 
machines,  pianos,  reed  organs,  fire  and  burglar  proof  safes,  etc.; 
and  yet  no  one  would  now  contend  that  railroads  are  not  com- 
mon carriers  of  these  kinds  of  articles.  At  common  law  the  char- 
acter of  the  carrier  was  never  determined  by  the  kind  of  property 
that  he  carried.  *  *  *  At  common  law  no  person  was  a  com- 
mon carrier  of  any  article  unless  he  chose  to  be,  and  unless  he  held 
himself  out  as  such;  and  he  was  a  common  carrier  of  just  such 
articles  as  he  chose  to  be,  and  no  others.  If  he  held  himself  out 
as  a  common  carrier  of  silks  and  laces,  the  common  law  would 
not  compel  him  to  be  a  common  carrier  of  agricultural  implements, 
such  as  plows,  harrows,  etc.  If  he  held  himself  out  as  a  common 
carrier  of  confectionery  and  spices,  the  common  law7  would  not  com- 
pel him  to  be  a  common  carrier  of  bacon,  lard,  and  molasses.*  And 
it  seems  to  us  clearly  beyond  all  doubt  that,  if  any  person  had,  in 
England,  prior  to  the  year  1607,  held  himself  out  as  a  common 
carrier  of  cattle  and  live  stock  by  land,  the  common  law  would 
have  made  him  such.  If  so,  where  *is  the  valid  distinction  that  is 
attempted  to  be  made  between  the  carrying  of  live  stock  and  the 
carrying  of  any  other  kind  of  personal  property?  The  common 
law  never  declared  that  certain  kinds  of  property  only  could  be 
carried  by  common  carriers,  but  it  permitted  all  kinds  of  personal 
property  to  be  so  carried.  At  common  law  any  person  could  be 

« Tunnel  v.  Pettijohn,  2  Har.  (Del.)  48. 


264  CARRIERS    OF   GOODS.  (Ch.   6 

a  common  carrier  of  all  kinds,  or  any  kind,  and  of  just  such  kinds 
of  personal  property  as  he  chose;  no  more,  nor  less.  Of  course,  it 
is  well  known  that  at  the  time  when  our  common  law  had  its 
origin — that  is,  prior  to  the  year  1607 — railroads  had  no  existence. 
But  when  they  came  into  existence  it  must  be  admitted  that  they 
would  be  governed  by  the  same  rules,  so  far  as  applicable,  which 
govern  other  carriers  of  property.  Therefore  it  must  be  admitted 
that  railroads  might  be  created  for  the  purpose  of  carrying  one 
kind  of  property  only,  or  for  carrying  many  kinds,  or  for  carrying 
all  kinds  of  property  which  can  be  carried  by  railroads,  including 
cattle,  live  stock,  etc.  In  this  state  it  must  be  presumed  that  they 
were  created  for  the  purpose  of  carrying  all  kinds  of  personal 
property.  It  can  hardly  be  supposed  that  they  were  created  simply 
for  the  purpose  of  being  carriers  of  such  articles  only  as  were 
carried  by  common  carriers  under  the  common  law  prior  to  the 
year  1607;  for,  if  such  were  the  case,  they  would  be  carriers  of 
but  very  few  of  the  innumerable  articles  that  are  now  actually 
carried  by  railroad  companies.  And  it  can  hardly  be  supposed  that 
they  were  created  for  the  mere  purpose  of  taking  the  place  of  pack 
horses,  or  clumsy  wagons,  often  drawn  by  oxen,  or  such  other 
primitive  means  of  carriage  and  transportation  as  were  used  in 
England  prior  to  that  year.  Railroads  are  undoubtedly  created  for 
the  purpose  of  carrying  all  kinds  of  property  which  the  common 
law  would  have  permitted  to  be  carried  by  common  carriers  in  any 
mode,  either  by  land  or  water,  which  probably  includes  all  kinds 
of  personal  property.  Our  decision,  then,  upon  this  question,  is 
that,  whenever  a  railroad  company  receives  cattle  or  live  stock 
to  be  transported  over  their  road  from  one  place  to  another,  such 
company  assumes  all  the  responsibilities  of  a  common  carrier,  ex- 
cept so  far  as  such  responsibilities  may  be  modified  by  special  con- 
tract." 

In  support  of  the  contrary  doctrine,  it  is  said,  in  the  case  of  older 
corporations,  at  least,  that  the  common  carrier,  in  entering  the 
business,  was  required  and  undertook  to  transport  only  such  prop- 
erty as  was  usually  carried  by  similar  companies  at  the  time  of  its 
organization  and  the  inception  of  its  business,  and  such  other  kinds 
of  property  as,  in  the  progress  of  invention  and  business  methods, 
might  be  tendered  for  carriage,  and  which  did  not,  from  its  nature, 


§    101)  LIVE    STOCK.  265 

impose  risks  of  a  different  character,  or  require  an  essentially  dif- 
ferent mode  of  management,  or  the  incurring  of  extra  expense  for 
equipment  on  account  of  its  new  and  different  character;  that  the 
transportation  of  live  stock  by  common  carriers  on  land  was  un- 
known to  the  common  law  at  the  time  when  their  extraordinary 
liabilities  were  fixed,  making  them  insurers  against  all  losses  not 
occurring  through  the  act  of  God  or  the  public  enemy;  that  the 
very  nature  and  vitality  of  the  animals,  their  constant  tendency 
and  inclination  to  move  about,  jostle,  crowd,  trample,  and  injure 
one  another,  introduces  an  element  of  hazard  and  risk  wholly  un- 
known, and  not  contemplated  in  the  original  undertaking  of  the 
carrier  as  a  public  servant;  that,  although  this  risk  may  be  greatly 
lessened  by  care,  by  feeding  and  watering,  and  by  constant  vigi 
lance,  there  is  nevertheless  imposed  upon  the  carrier  a  degree  of 
responsibility  and  an  amount  of  labor  so  different  from  what  is 
required  in  the  case  of  other  kinds  of  property  that  it  is  neither 
just  nor  right  that  he  should  be  compelled  to  accept  and  carry  live 
stock  under  the  same  strict  rules  of  liability  that  attach  to  the 
carriage  of  other  kinds  of  property.6 

InJterent,  Pernicious  Condition  of  Animals. 

As  has  been  already  stated,  it  is  the  duty  of  the  common  car 
rier  to  bestow  upon  the  goods  delivered  to  him  for  transportation 
the  kind  and  degree  of  care  which  their  disclosed  nature  demands.6 
If  his  duty  has  been  discharged  in  this  respect,  and,  without  neg- 
ligence on  his  part,  the  property  is  destroyed  or  damaged  by  any 
of  the  excepted  perils,  he  wrill  not  be  liable.7  The  same  proposition 
holds  true  regarding  the  carriage  of  live  stock.  The  carrier's  lia- 
bility is  further  contingent  upon  the  inherent  vice,  disease,  or  con- 
dition of  the  animals  shipped.  By  "vice"  is  meant  that  abnormal 
condition  which,  by  its  internal  development,  tends  to  the  injury 
or  destruction  of  the  animal.8  Animals  may  injure  or  destroy  them- 
selves or  one  another;  they  may  perish  from  fright,  or  die  of  starva- 
tion because  they  refuse  to  eat  the  furnished  food;  they  may  suc- 

»  Michigan  S.  &  N.  I.  R.  Co.  v.  McDonough,  21  Mich.  165.     See,  also,  Lake 
Shore  &  M.  S.  R.  Co.  v.  Perkins,  25  Mich.  329. 
«  Ante,  p.  222. 
7  Ante,  p.  225. 
s  Blower  v.  Railway  Co.,  L.  R.  7  C.  P.  G55. 


266  CARRIERS    OF    GOODS.  (Ch.   6 

cumb  to  the  effects  of  heat  or  cold.  These  are  but  developments 
of  conditions  inherent  in  live  animals,  against  which  the  carrier 
gives  no  absolute  warranty.  In  these  cases  it  is  sufficient  for  the 
carrier  to  show  that  he  has  not  been  negligent;  that  he  has  pro- 
vided suitable  means  of  transportation,  and  has  exercised  the  de- 
gree of  care,  in  the  circumstances,  which  the  nature  of  the  prop- 
erty required.9 

9  Cragin  v.  Railroad  Co.,  51  N.  Y.  61;  Giblin  v.  Steamship  Co.,  8  Misc. 
Rep.  22,  28  N.  Y.  Supp.  69;  Armstrong  v.  Express  Co.,  159  Pa.  St.  640,  28 
Atl.  448.  See,  also,  Cleveland,  C.,  C.  &  St.  L.  Ry.  Co.  v.  Patterson,  69  111. 
App.  438;  Hendrick  v.  Railroad  Co.,  170  Mass.  44,  48  N.  E.  835;  Comer 
v.  Railroad  Co.,  52  S.  C.  36,  29  S.  E.  637;  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.'s 
Receiver  v.  Webb  (Ky.)  46  S.  W.  11;  Richardson  v.  Railway  Co.,  61  Wis. 
596,  21  N.  W.  49;  Illinois  Cent.  R.  Co.  v.  Scruggs,  69  Miss.  418,  13  South. 
698;  Louisville,  N.  O.  &  T.  Ry.  Co.  v.  Bigger,  66  Miss.  319,  6  South.  234; 
Smith  v.  Railroad  Co.,  12  Allen  (Mass.)  531;  Penn  v.  Railroad  Co.,  49  N.  Y. 
204.  Suitable  provisions  having  been  made,  and  injuries  occurring  through 
propensities,  such  as  fright  and  bad  temper,  carrier  is  not  liable.  Evans  v.  Rail- 
road Co.,  Ill  Mass.  142;  Regan  v.  Express  Co.,  49  La.  Ann.  1579,  22  South. 
835.  The  shipper  must  make  known  the  necessity  of  unusual  care  in  order 
that  proper  precaution  may  be  used.  Wilson  v.  Hamilton,  4  Ohio  St.  722.  On 
the  liability  of  the  carrier  for  the  safe  transportation  of  cattle  as  an  insurer, 
see  Clarke  v.  Railroad  Co.,  14  N.  Y.  570;  Rixford  v.  Smith,  52  N.  H.  355; 
Goldey  v.  Railroad  Co.,  30  Pa,  St.  242;  McDaniel  v.  Railroad  Co.,  24  Iowa, 
412.  Delay  caused  by  unavoidable  accident,  resulting  in  damage,  does  not 
excuse  the  carrier,  unless,  during  the  delay,  he  used  the  highest  degree  of 
care  for  the  safety  of  the  freight.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.'s  Re- 
ceiver v.  Webb  (Ky.)  46  S.  W.  11;  Kinnick  v.  Railroad  Co.,  69  Iowa,  665, 
29  N.  W.  772.  A  carrier  of  live  stock  cannot  stipulate  for  exemption  from  lia- 
bility from  the  results  of  his  own  negligence.  Moulton  v.  Railway  Co.,  31 
Minn.  85,  16  N.  W.  497;  Kansas  City,  St.  J.  &  C.  B.  R.  Co.  v.  Simpson,  30 
Kan.  645,  2  Pac.  821;  St.  Louis  &  S.  F.  Ry.  v.  Tribbey,  6  Kan.  App.  497, 
50  Pac.  458;  Chicago  &  A.  R.  Co.  v.  Grimes,  71  111.  App.  397;  Leonard  v. 
Whitcomb,  95  Wis.  646,  70  N.  W.  817.  Reasonableness  of  contract.  Kansas 
&  A.  V.  Ry.  Co.  v.  Ayers,  63  Ark.  331,  38  S.  W.  515. 


§    102)  BAGGAGE.  257 


SAME— BAGGAGE. 

103.  Carriers  of  passengers  are  common  carriers  of  the 
passengers'  reasonable  baggage,  and  are  liable  as 
such  for  its  safe  delivery. 

Obligation  to  Carry  Baggage. 

The  obligation  to  carry  his  baggage  is  incident  to  and  a  part  of 
the  contract  to  carry  the  passenger,  and  he  has  a  right  to  require 
that  a  reasonable  amount  be  carried  with  him  without  extra  charge.1 
The  compensation  for  the  carriage  of  the  baggage  is  included  in 
that  paid  for  the  fare  of  the  passenger.2  The  amount  of  baggage 
may  be  restricted  within  reasonable  limits,  either  by  contract  or 
statute;  but,  in  the  absence  of  such  limitation,  the  carrier  is  liable 
for  any  amount  received.8  The  liability  of  the  carrier  for  bag-' 
gage  which  it  receives  is  that  of  a  common  carrier  of  goods,*  un- 
less the  passenger  is  carried  free,6  or  the  property,  legally  speak- 
ing, does  not  constitute  baggage,8  in  either  of  which  events  the  car- 
rier is  liable  only  as  a  gratuitous  bailee. 

§  102.  i  Originally,  carriers  were  not  held  liable  for  baggage  unless  a 
separate  compensation  was  paid  therefor.  Middleton  v.  Fowler,  1  Salk.  282. 
Subsequently  a  reasonable  amount  was  allowed,  by  usage,  without  extra  com- 
pensation, but  the  amount  was  jealously  restricted.  Pardee  v.  Drew,  25  Wend. 
(X.  Y.)  459;  Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.)  85.  Reasonable- 
ness of  regulation  requiring  purchase  of  ticket  before  baggage  will  be  checked. 
Coffee  v.  Railroad  Co.  (Miss.)  25  South.  157. 

2  Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.)  85;  Hollister  v.  Nowlen, 
19  Wend.  (N.  Y.)  234;  Cole  v.  Goodwin,  19  Wend.  (N.  Y.)  251.  It  is  imma- 
terial that  the  fare  was  paid  by  a  third  person.  Roberts  v.  Koehler,  30  Fed. 
94. 

s  New  York  Central  &  H.  R.  R.  Co.  v.  Fraloff,  100  U.  S.  24;  Merrill  v. 
Grinnell,  30  N.  Y.  594.  Where  no  inquiry  is  made  by  the  carrier  as  to  the 
value  of  the  baggage,  and  the  passenger  does  not,  by  act  or  artifice,  mislead 
the  carrier  as  to  the  true  value,  his  failure  to  disclose  the  value  will  not 
relieve  the  carrier  of  liability.  New  York  Cent.  &  H.  R.  R.  Co.  v.  Fraloff, 
100  U.  S.  24. 

*  Hollister  v.  Nowlen,  19  Wend.  (N.  Y.)  234. 

s  Flint  &  P.  M.  Ry.  Co.  v.  Weir,  37  Mich.  111. 

e  See  post,  pp.  270.  272. 


268  CARRIERS    OF   GOODS.  (Ch.   & 

What  Constitutes  Baggage. 

"The  term  'baggage'  includes  such  goods  and  chattels  as  the 
convenience  or  comfort,  the  taste,  the  pleasure,  or  the  protection 
of  passengers  generally  makes  it  fit  and  proper  for  the  passenger 
in  question  to  take  with  him  for  his  personal  use,  according  to 
the  wants  or  habits  of  the  class  to  which  he  belongs,  either  with 
reference  to  the  period  of  the  transit  or  the  ultimate  purpose  of 
the  journey."7  In  Hawkins  v.  Hoffman,8  Brownson,  J.,  suggested 
as  a  proper  test  that  whatever  is  usually  carried  as  baggage  should 
be  so  considered:  "I  do  not  intend  to  say  that  the  articles  must 
be  such  as  every  man  deems  essential  to  his  comfort,  for  some 
men  carry  nothing,  or  very  little,  with  them  when  they  travel, 
while  others  consult  their  convenience  by  carrying  many  things. 
Nor  do  I  intend  to  say  that  the  rule  is  confined  to  wearing  ap- 
parel, brushes,  razors,  writing  apparatus,  and  the  like,  which  most 
persons  deem  indispensable.  If  one  has  books  for  his  instruction 
or  amusement  by  the  way,  or  carries  his  gun  or  fishing  tackle, 
they  would  undoubtedly  fall  within  the  term  'baggage,'  because 
they  are  usually  carried  as  such.  This  is,  I  think,  a  good  test  for 
determining  what  things  fall  within  the  rule."  Some  other  defini- 
tions are:  "Only  such  articles  as  a  traveler  usually  carries  with 
him  for  his  comfort  or  convenience,  both  during  the  journey  and 
during  his  stay  at  the  place  of  his  destination;"9  "all  articles  which 
it  is  usual  for  persons  traveling  to  carry  with  them,  whether  from 
necessity  or  for  convenience  or  amusement;"10  "such  articles  of 
personal  convenience  or  necessity  as  are  usually  carried  by  passen- 
gers for  their  personal  use,  and  not  merchandise,  or  other  valu- 
ables."11 

'  Lawson,  Bailm.  §  272. 

s  6  Hill    (N.  Y.)  586. 

»  Wood,  Ry.  Law,  §  401. 

ioAng.  Carr.  §  115. 

1 1  Hutch.  Carr.  §  GTO.  The  criticism  of  Judge  Story's  definition  in  Dibble- 
v.  Erown,  12  Ga.  217,  226,  would  apply  equally  well  to  that  of  Mr.  Lawson:. 
"When  we  settled  down  with  Judge  Story  upon  the  proposition  that  by 
'baggage'  is  to  be  understood  'such  articles  of  necessity  or  personal  con- 
venience as  are  usually  carried  by  passengers,  for  their  personal  use,'  we  are 
still  without  a  rule  for  determining  what  articles  are  included  in  baggage;, 
for  such  things  as  would  be  necessary  to  one  man  would  not  be  necessary 


§    102)  BAGGAGE.  269 

Same — Articles  Held  to  l)e  Baggage. 

Among  the  numerous  articles  which  have  been  held  to  be  bag- 
gage when  carried  by  a  passenger,  are  the  following:  Bedding, 
when  the  passenger  is  required  to  provide  it,12  but  not  otherwise; 13 
clothing;14  cloth  and  materials,  when  intended  for  clothing;15  guns, 
for  sporting  purposes,16  pistols,17  and  rifles;18  tools  of  mechanics;19 

to  another.  Articles  which  would  be  held  but  ordinary  conveniences  by  A. 
might  be  considered  incumbrances  by  B.  One  man,  from  choice  or  habit, 
or  from  educational  incapacity  to  appreciate  the  comforts  or  conveniences  of 
life,  needs,  perhaps,  a  portmanteau,  a  change  of  linen,  and  an  indifferent 
razor;  while  another,  from  habit,  position,  and  education,  is  unhappy  with- 
out all  the  appliances  of  comfort  which  surround  him  at  home.  The  quantity 
and  character  of  baggage  must  depend  very  much  upon  the  condition  in  life 
of  the  traveler,— his  calling,  his  habits,  his  tastes,  the  length  or  shortness 
of  his  journey,  and  whether  he  travels  alone  or  with  his  family.  If  we 
agree  further  with  Judge  Story,  and  say  that  the  articles  of  necessity  or  of 
convenience  must  be  such  as  are  usually  carried  by  travelers  for  their  per- 
sonal use,  we  are  still  at  fault,  because  there  is,  in  no  state  of  this  Union, 
nor  in  any  part  of  any  one  state,  any  settled  usage  as  to  the  baggage  which 
travelers  carry  with  them  for  their  personal  use.  The  quantity  and  char- 
acter of  baggage  found  to  accompany  passengers  are  as  various  as  are 
the  countenances  of  the  travelers." 

12  Hirschsohn  v.  Packet  Co.,  34  N.  Y.  Super.  Ct.  521.. 

is  Connolly  v.  Warren,  106  Mass.  14G;  Macrow  v.  Railroad  Co.,  L.  R.  6  Q. 
B.  612.  Contra,  Ouimit  v.  Henshaw,  35  Vt.  605.  And  see  Parmelee  v. 
Fischer,  22  111.  212. 

i*  Dexter  v.  Eailroad  Co.,  42  N.  Y.  326;  Toledo,  W.  &  W.  Ry.  Co.  v.  Ham- 
mond, 33  Ind.  379,  382;  Dibble  v.  Brown,  12  Ga.  217,  225;  Baltimore  Steam- 
Packet  Co.  v.  Smith,  23  Md.  402.  Laces  worth  $10,000  have  been  held  to  be 
baggage.  New  York  Cent.  &  H.  R.  R.  Co.  v.  Fraloff,  100  U.  S.  24. 

isMauritz  v.  Railroad  Co.,  23  Fed.  765,  21  Am.  &  Eng.  R.  Gas.  286,  292; 
Van  Horn  v.  Kermit,  4  E.  D.  Smith  (N.  Y.)  453;  Duffy  v.  Thompson,  Id.  178. 

is  Van  Horn  v.  Kermit,  4  E.  D.  Smith  (N.  Y.)  453. 

IT  Davis  v.  Railroad  Co.,  22  111.  278.  More  than  one  revolver  for  a  trav- 
eling grocer  was  held  unnecessary,  Chicago,  R.  I.  &  P.  R.  Co.  v.  Collins,  56 
111.  212;  although  a  pair  of  dueling  pistols  and  a  pocket  pistol  was  held  a 
proper  equipment  for  a  passenger  in  Woods  v.  Devin,  13  111.  746. 

isBruty  v.  Railway  Co.,  32  U.  C.  Q.  B.  66;  Davis  v.  Railroad  Co.,  10 
How.  Prac.  (N.  Y.)  330. 

19  Davis  v.  Railroad  Co.,  10  How.  Prac.  (N.  Y.)  330;  Porter  v.  Hildebrand, 
14  Pa.  St.  129.  So,  also,  of  a  mechanic  in  watchmaking  or  jewelry,  what 
is  a  reasonable  quantity  of  tools  being  a  question  for  the  jury.  Kansas  City, 
Ft.  S.  &  G.  R.  Co.  v.  Morrison,  34  Kan.  502,  9  Pac.  2i>5. 


270  CARRIERS    OF   GOODS.  (Ch.   6 

surgical  instruments;20  opera  glasses  and  telescopes;21  watches  and 
jewelry,  for  wearing  purposes;22  dressing  cases;23  books  and  manu- 
scripts;24 carpets;25  money,  for  expenses;26  and  merchandise  has 
been  held  to  be  baggage  when  its  character  is  disclosed,  or  its  nature 
apparent.27 

Same — Articles  Held  not  to  le  Baggage. 

The  circumstances  and  the  purposes  for  which  the  particular 
article  was  being  carried  are  often  decisive  of  its  legal  character. 
In  the  circumstances  attending  the  particular  case  the  following 
articles  have  been  held  not  to  constitute  baggage:  Money  not  in- 
tended for  personal  use;28  cloth  for  dresses  for  a  third  person;29 

20  Hannibal  R.  Co.  v.  Swift,  12  Wall.  262.    A  dentist's  Instruments,  Brock 
v.  Gale,  14  Pla.  523. 

21  Toledo,  W.  &  W.  Ry.  Co.  v.  Hammond,  33  Ind.  379;    Cooney  v.  Palace- 
Car  Co.  (Ala.)  25  South.  712;    Cadwallader  v.  Railroad  Co.,  9  L.  C.  169. 

22  McCormick   v.   Railroad   Co..   4  E.   D.   Smith   (N.   Y.)   181;    Torpey   v. 
Williams,  3  Daly  (N.  Y.)  162;    McGill  v.  Rowand,  3  Pa.  St.  451;    Coward 
v.  Railroad  Co.,   16  Lea   (Tenn.)  225;    American   Contract  Co.  v.   Cross,   8 
Bush  (Ky.)  472. 

23  Cadwallader  v.  Railroad  Co.,   9  L.   C.   169;    Cooney  v.  Palace-Car   Co. 
(Ala.)  25  South.  712. 

24  Gleason   v.   Transportation   Co.,   32  Wis.   85;    Hopkins  v.   Westcott,  6 
Blatch.  64,  Fed.  Gas.  No.  6,692;    Doyle  v.  Kiser,  6  Ind.  242;    Texas  &  P. 
Ry.  Co.  v.  Morrison's  Faust  Co.  (Tex.  Civ.  App.)  48  S.  W.  1103. 

25  Minter  v.  Railroad  Co.,  41  Mo.  503. 

26  Illinois  Cent.  R.   Co.  v.  Copeland,  24  111.  332  (but  cf.  Davis  v.   Rail- 
road Co.,  22  111.  278);    Merrill  v.  Grinnell,  30  N.  Y.  594;    Orange  Co.  Bank 
v.  Brown,  9  Wend.  (N.  Y.)  85;   Hutchings  v.  Railroad  Co.,  25  Ga.  61;   Bomnr 
v.  Maxwell,  9  Humph.   (Tenn.)  621;    Doyle  v.  Kiser,  6  Ind.  242;    Adams  v. 
Steamboat  Co.,  151  N.  Y.  163,  45  N.  E.  369.     In  Merrill  v.  Grinnell,  30  N. 
Y.  594,  $800  in  gold  was  not  considered  too  large  an  amount  for  the  passen- 
ger to  carry  in  his  trunk  for  the  whole  of  the  contemplated  journey  from 
Hamburg  to  New  York,  and  thence  to  San  Francisco. 

27  Stoneman  v.  Railway  Co.,  52  N.  Y.  429;    Sloman  v.  Railroad  Co.,   67 
N.  Y.  208;   Hellman  v.  Holladay,  1  Woolw.  365,  Fed.  Gas.  No.  6,340.     Where 
the  carrier  knows  the  contents  of  the  trunk  to  be  merchandise,   and  ac- 
cepts it.  he  will  be  liable  as  a  common  carrier  of  goods.     Hannibal  R.  Co. 
v.  Swift,  12  Wall.  262;    Waldron  v.  Railroad  Co.,  1  Dak.  351,  46  N.  W.  456; 
Texas,  etc.,  R.  Co.  v.  Capps,  18  Cent.  Law  J.  211,  16  Am.  &  Eng.  R,  Gas.  118. 

28  Orange  Co.  Bank  v.  Brown,  9  Wend.  (N.  Y.)  85;   Weed  v.  Railroad  Co., 
19  Wend.  (N.  Y.)  534;    Whitmore  v.  The  Caroline,  20  Mo.  513;    Jordan  v. 

2»  Dexter  v.  Railroad  Co.,  42  N.  Y.  326. 


§    102)  BAGGAGE.  271 

bedding  and  household  goods;30  presents;31  toys;32  medicines, 
handcuffs,  and  locks;33  samples  of  traveling  salesmen;34  watches, 
in  quantity;35  bullion,  and  jewelry  not  for  wearing  purposes;36 
deeds  and  documents;37  engravings  and  valuable  papers;38  and 
many  other  articles.39 
Custom  and  Usage  in  Determining  Character. 

Usage  and  custom  of  the  particular  carrier  is  always  relevant 
in  determining  whether  the  particular  article  is  baggage  or  not, 
for  by  usage  the  carrier  holds  himself  out  to  the  traveling  public 
as  ready  and  willing  to  carry  certain  classes  of  property,  without 

Railroad  Co.,  5  Gush.  (Mass.)  69;  Dunlap  v.  Steamboat  Co.,  98  Mass.  371; 
Dibble  v.  Brown,  12  Ga.  217;  Davis  v.  Railroad  Co.,  22  111.  278;  Hutchings 
v.  Railroad  Co.,  25  Ga.  61.  Money  carried  in  the  passenger's  trunk  for 
transportation  merely  is  not  baggage,  and,  if  the  carrier  is  not  informed  of 
its  presence,  he  is  not  liable  for  its  loss.  Orange  Co.  Bank  v.  Brown,  9 
Wend.  (X.  Y.)  85. 

so  Connolly  v.  Warren,  106  Mass.  146;  Macro w  v.  Railroad  Co.,  L.  R.  6  Q. 
B.  612;  Texas  &  P.  Ry.  Co.  v.  Ferguson,  9  Am.  &  Eug.  R.  Cas.  395. 

si  Xevius  v.  Steamboat  Co.,  4  Bosw.  (N.  Y.)  225;  The  Ionic,  5  Blatchf. 
538,  Fed.  Cas.  No..  7,059. 

32  Hudston  v.  Railroad  Co.,  10  Best  &  S.  504  (a  child's  rocking  horse). 

33  Bomar  v.  Maxwell,  9  Humph.  (Tenn.)  620. 

s*  Hawkins  v.  Hoffman,  6  Hill  (N.  Y.)  586;  Pennsylvania  Co.  v.  Miller, 
35  Ohio  St.  541;  Texas,  etc.,  R.  Co.  v.  Capps,  16  Am.  &  Eng.  R.  Cas.  118; 
Ailing  v.  Railroad  Co.,  126  Mass.  121;  Stimson  v.  Railroad  Co.,  98  Mass.  83. 

35  Belfast  &  B.  Ry.  Co.  v.  Keys,  9  H.  L.  Cas.  556. 

se  Cincinnati  &  C.  A.  L.  R.  Co.  v.  Marcus,  38  111.  219;  Nevins  v.  Steam- 
boat Co.,  4  Bosw.  (N.  Y.)  225;  Steers  v.  Steamship  Co.,  57  N.  Y.  1;  Michigan 
Cent.  R.  Co.  v.  Carrow,  73  111.  348. 

37  Phelps  v.  Railway  Co.,  19  C.  B.  (N.  S.)  321. 

ss  Xevius  v.  Steamboat  Co.,  4  Bosw.  (N.  Y.)  225  (engravings);  Phelps  v. 
Railway  Co.,  19  C.  B.  (N.  S.)  321;  Thomas  v.  Railroad  Co.,  14  U.  C.  Q.  B.  389 
(valuable  papers). 

39  Dog,  transferred  from  coach  to  baggage  car  on  demand  of  brakeman, 
held  to  be  baggage,  Cantling  v.  Railroad  Co.,  54  Mo.  385;  stage  properties 
held  not  to  be  baggage,  Oakes  v.  Railroad  Co.,  20  Or.  392,  26  Pac.  230; 
Masonic  regalia  held  not  to  be  baggage,  Nevins  v.  Steamboat  Co.,  4  Bosw. 
(X.  Y.)  225;  nor  a  sacque,  muff,  and  napkin  ring  (for  a  man),  Chicago,  R. 
I.  &  P.  R.  Co.  v.  Boyce,  73  111.  510.  And  see,  as  to  hunting  dog,  Kansas 
City,  M.  &  B.  R.  Co.  v.  Higdon,  94  Ala.  286,  10  South.  282;  Honeyman  v. 
Railroad  Co.,  13  Or.  352,  10  Pac.  628;  books  bought  by  wife  for  husband, 
Hurwitz  v.  Packet  Co.  (City  Ct.  X.  Y.)  56  N.  Y.  Supp.  379;  uncrated  bicycles, 
State  v.  Railway  Co.,  71  Mo.  Apy.  oso. 


272  CAERIERS    OF   GOODS.  (Ch.    6 

extra  compensation,  as  personal  baggage.  In  such  cases  he  is 
clearly  liable  as  a  common  carrier  for  articles  so  receive:!.  In 
fact,  such  an  offer  to  carry  unusual  articles  as  baggage  is  not  in- 
frequently a  direct  inducement  to  the  selection  of  the  particular 
carrier.40 

Mercfiandise  as  Baggage. 

It  follows  from  what  has  already  been  said  that  the  common 
carrier  of  passengers  is  not  bound  to  carry  as  baggage  that  which 
does  not,  in  a  legal  sense,  properly  fall  within  that  classification.41 
The  carrier  may,  of  course,  volunteer  to  accept  any  kind  of  prop- 
erty in  any  amount  as  baggage,  either  in  special  instances  or  by 
established  usage,  and  in  all  such  cases  he  becomes  liable  as  a 
common  carrier  of  goods  for  the  property  so  received  for  transporta- 
tion.42 And,  if  goods  are  so  packed  that  their  nature  is  obvious, 
knowledge  of  their  character  on  the  part  of  the  carrier  will  be  pre- 
sumed;43 as  if  a  roll  of  carpet  be  received  as  baggage.44  But 
knowledge  of  the  nature  of  the  contents  will  not  necessarily  be 
presumed  from  the  exterior  of  the  package,  as  if  a  box  be  tendered 
instead  of  a  trunk;48  nor  will  the  fact  that  a  trunk  is  of  the  kind 
generally  used  by  commercial  travelers  imply  any  notice  that  it  con- 
tains merchandise,  such  as  samples.46  A  passenger  tendering  a 

40  Dibble  v.  Brown,  12  Ga.  217;    Texas,  etc.,  R.  Co.  v.  Capps,  16  Ani.  & 
Eng.   R.   Cas.   118.     But   see   Ailing   v.    Railroad  Co.,    126   Mass.    121.     The 
course  of  business  and  practice  of  a  railroad  company  in  respect  to  the 
custody  of  baggage  passing  over  its  line  and  to  be  transferred  to  a  con- 
necting road  is  of  great  importance  in  determining  the  nature  of  its  liability 
therefor.     Ouimit  v.  Henshaw,  35  Vt.  605. 

41  Pfister  v.  Railroad  Co.,  70  Gal.  169,  11  Pac.  686;    Norfolk  &  W.  R.  Co. 
v.  Irvine,  84  Va.  553,  5  S.  E.  532;    Id.,  85  Va.  217,  7  S.  E.  233. 

42  Jacobs  v.  Tutt,  33  Fed.  412;    Toledo  &  O.  C.  Ry.  Co.  v.  Dages,  57  Ohio 
St.  38,  47  N.  E.  1039;    Trimble  v.  Railroad  Co.,  39  App.  Div.  403,  57  N.  Y. 
Supp.  437. 

43  Thomp.  Carr.  523;    Waldron  v.  Railroad  Co.,  1  Dak.  351,  4G  N.  W.  456; 
Butler  v.  Railroad  Co.,  3  E.  D.  Smith  (N.  Y.)  571.     If  the  carrier  has  knowl- 
edge of  the  character  of  the  articles,  he  will  be  liable  for  their  safety. 
Cakes  v.  Railroad  Co.,  20  Or.  392,  26  Pac.  230.     And  see  cases  collected  in 
Hale,  Bailm.  p.  385,  note. 

44  Minter  v.  Railroad  Co.,  41  Mo.  503. 

45  Belfast  &  B.  Ry.  Co.  v.  Keys,  9  H.  L.  Cas.  556. 

40  !See  Michigau   Cent.  R.  Co.   v.   Carrow,  73  111.   348;    Ailing  v.   Railroad 


§    102)  BAGGAGE.  273 

package  to  be  carried  as  baggage  impliedly  represents  that  it  con- 
tains only  baggage,47  and  the  carrier  has  a  right  to  rely  on  such 
representation,48  and  will  be  liable  only  for  gross  negligence,  in 
the  event  of  loss,  if  he  has  been  deceived.49  Questions  put  by  the 
carrier  as  to  the  nature  of  the  contents  must  be  answered  truly, 
and,  if  the  passenger  refuses  to  answer,  the  carrier  may  decline  to 
transport  the  baggage.60 

Passenger  jtfust  be  Owner. 

That  the  liability  of  the  carrier  as  insurer  of  a  reasonable  amount 
of  personal  baggage  may  attach,  it  is  essential  that  the  passenger 
have  either  a  general  or  special  property  in  the  baggage  in  ques- 
tion. Thus,  if  money,  placed  by  one  passenger  in  the  valise  of  an- 
other, with  the  latter's  knowledge,  and  by  him  delivered  for  trans- 
portation as  his  baggage,  is  lost,  the  owner  cannot  recover.61  But 

Co.,  126  Mass.  121;  Humphreys  v.  Perry,  148  U.  S.  627,  13  Sup.  Ct.  711. 
Goods  and  samples  of  a  commercial  traveler  are  to  be  considered  as  per- 
sonal baggage  where  their  character  was  fully  understood  at  the  time  of 
their  reception.  Dixon  v.  Navigation  Co.,  15  Ont.  App.  647,  39  Am.  &  Eng. 
R.  Cas.  425.  See,  also,  Sloman  v.  Railroad  Co.,  67  N.  Y.  208,  reversing  6 
Hun,  546. 

47  Michigan  Cent.  R.  Co.  v.  Carrow,  73  111.  348;  Humphreys  v.  Perry,  148 
U.  S.  627,  13  Sup.  Ct.  711;  Haines  v.  Railroad  Co.,  29  Minn.  160,  12  N.  W. 
447.  Contra,  Kuter  v.  Railroad  Co.,  1  Biss.  35,  Fed.  Cas.  No.  7,955. 

*  s  if  the  transaction  was  a  legal  fraud,  it  is  sufficient  to  avoid  the  con- 
tract.    Michigan  Cent.  R,  Co.  v.  Carrow,  73  111.  348.     See,  also,  Blumenthal 
v.  Railroad  Co.,  79  Me.  550,  11  Atl.  605;    Hellman  v.  Holladay,  1  Woolw. 
365,  Fed.  Cas.  No.  6,340. 

*  9  Michigan  Cent.  R.  Co.  v.  Carrow,  73  111.  348;    Smith  v.  Railroad  Co., 
44  N.  H.  325;   Ailing  v.  Railroad  Co.,  126  Mass.  121;    Blumantle  v.  Railroad 
Co.,  127  Mass.  322.     And  see  Haines  v.  Railroad  Co.,  29  Minn.  160,  12  N. 
W.  447;    Pennsylvania  Co.  v.  Miller,  35  Ohio  St.  541;    Greenwich  Ins.  Co. 
v.   Memphis  &  C.   Packet  Co.,   4  O.  L.   D.   405;    Bowler  &  Burdick  Co.   v. 
Toledo  &  O.  C.  Ry.  Co.,  10  Ohio  Cir.  Ct.  R.  272;    Cahill  v.  Railway  Co.,  13 
C.  B.  (N.  S.)  818;    Great  Northern  Ry.  Co.  v.  Shepherd,  8  Exch.  30. 

so  New  York  Cent.  &  H.  R.  R.  Co.  v.  Fraloff,  100  U.  S.  24;  Norfolk  & 
W.  R.  Co.  v.  Irvine,  84  Va.  553,  5  S.  E.  532;  Id.,  85  Va.  217,  7  S.  E.  233. 

si  Dunlap  v.  Steamboat  Co.,  98  Mass.  371;    Becher  v.  Railroad  Co.,  L.  R. 

5  Q.  B.  241.     Traveling  man's  samples,  where  goods  are  owned  by  employer, 

Missouri  Pac.  Ry.  Co.  v.   Liveright  (Kan.  App.)  53  Pac.  763;    Cattaraugus 

Cutlery  Co.  v.  Buffalo  R.  &  P.  Ry.  Co.,  24  App.  Div.  267,  48  N.  Y.  Supp.  451. 

BAR.NEG.— 18 


274  CARRIERS    OF    GOODS.  (Ch.   6 

members  of  the  same  family  may  carry  one  another's  effects,52 
and  it  has  been  held  that  where  the  plaintiff  went  on  in  advance, 
leaving  his  baggage  to  be  brought  seven  days  later  by  his  wife, 
with  her  own  baggage,  defendant  was  liable  to  plaintiff  for  its  loss.53 
But  where  a  servant  preceded  his  master,  carrying  his  luggage, 
the  carrier  was  held  not  liable  for  its  loss.54 

Passenger  Need  not  Accompany  Baggage. 

In  the  absence  of  special  agreement,  or  negligence  on  the  part 
of  the  carrier,  a  passenger  is  liable  for  freight  charges  on  his  bag- 
gage unless  he  accompanies  it.  But  if  a  passenger  pays  his  fare 
with  an  agreement  as  to  the  forwarding  of  his  baggage,  the  com- 
pany is  liable  as  a  common  carrier,  whether  the  baggage  is  for- 
warded on  the  same,  the  preceding,  or  a  subsequent  train,  and  the 
owner  is  not  liable  for  any  additional  charge.55  To  render  the  car- 
rier liable  as  an  insurer,  it  is  not,  therefore,  essential  that  the  pas- 
senger accompany  his  baggage.  Neither  is  it  essential  that  the 
compensation  be  paid  in  advance.  It  is  sufficient  if  the  carrier 
receives  and  undertakes  to  transport  the  baggage  according  to 
an  agreement,  either  receiving  his  compensation  in  advance  or  un- 
dertaking to  collect  it  when  the  carriage  is  complete.  The  fare  paid 
by  the  passenger  is  full  compensation  for  the  carriage  of  his  rea- 
sonable, personal  baggage;  but  if  baggage  is  subsequently  for- 
warded under  the  direction  of  the  passenger,  in  the  absence  of  spe- 
cial agreement  or  negligence  on  the  carrier's  part,  it  must  be  paid 
for  as  ordinary  merchandise.58 

62  Dexter  v.  Railroad  Co.,  42  N.  Y.  32G.  But  not  partnership  property 
carried  by  a  member  of  the  firm.  Pennsylvania  R.  Co.  v.  Knight,  58  N. 
J.  Law,  287,  33  Atl.  845. 

es  Curtis  v.  Railroad  Co.,  74  N.  Y.  116. 

64  Becher  v.  Railroad  Co.,  L.  R.  5  Q.  B.  241. 

65  Warner  v.  Railroad  Co.,  22  Iowa,  1G6.     See,  also,  Shaw  v.  Railroad  Co., 
40  Minn.  144,  41  N.  W.  548;    Collins  v.  Railroad  Co.,  10  Cush.  (Mass.)  506; 
Wilson  v.  Railway,  56  Me.  60;    Wald  v.  Railroad  Co.,  162  111.  545,  44  N.  E. 
888.     Railroad  companies  are  not  obliged  to  receive  as  baggage  the  trunk 
of  one  who  does  not  go  by  the  same  train.    Graffam  v.  Railroad  Co.,  67 
Me.  234. 

ee  Wilson  v.  Railway,  56  Me.  60.  Where  the  passenger,  with  the  consent 
of  the  carrier,  stops  over,  and  permits  his  baggage  to  go  on,  the  carrier  is 
liable  as  an  insurer  until  a  reasonable  time  elapses  after  the  baggage  has 
reached  its  destination  without  the  passenger  calling  for  it.  Logan  v.  Rail- 


§    102)  BAGGAGE.  275 

In  Custody  of  Passenger. 

To  charge  the  common  carrier  as  insurer,  it  is  essential  that  he 
should  have  sole  custody  of  the  goods.57  Kegarding  the  baggage 
of  passengers,  the  question  of  custody  arises  most  frequently  in 
connection  with  articles  retained  by  the  passenger  under  his  super- 
vision in  the  same  car  or  compartment.  These  cases  fall  naturally 
into  three  classes: 

(a)  Where  the  passenger  retains  in  his  possession,  without  no- 
tice,  articles   which  are  not   technically  baggage.     In   such   cases 
the  carrier  is  not  liable  for  their  loss,  even  if  it  occurs  through 
his  negligence,58  for  the  reason  that  the  carrier's  liability  to  the 
passenger  is  limited  by  his  contract,  and  he  is  under  no  obligation 
to  carry  more  than  a  reasonable  amount  of  ordinary  personal  bag- 
gage.59    Thus,  when  a  passenger  was  violently  robbed  of  a  large 
amount  of  bonds,  which  he  was  carrying  on  his  person,  unknown 
to  the  carrier,  the  latter  was  held  not  to  be  liable.60 

(b)  When  the  passenger's  ordinary  baggage  is  delivered  to  the 
carrier,  but,  for  the  convenience  of  the  former,  is  transported  in 
the  car  or  state-room  with  the  passenger  where  he  can  have  access 
to  it,  the  carrier  is  liable  as  insurer.61     A  regulation  forbidding 
passengers  to  take  light  baggage,  necessary  for  use  during  the  jour- 
ney, into  the  state  room  or  car  with  them,  except  at  their  own 
risk,  is  not  a  reasonable  regulation.62    WThat  constitutes  a  sum- 
road  Co.,  11  Rob.  (La.)  24;    Chicago,  R.  I.  &  P.  R.  Co.  v.  Fairclough,  52  III. 
106.     But  see  Laffrey  v.  Grummond,  74  Mich.  186,  41  N.  W.  894. 

57  See  ante,  p.  218. 

SB  Hillis  v.  Railway  Co.,  72  Iowa,  228,  33  N.  W.  643;  First  Nat.  Bank  y. 
Marietta  &  C.  R.  Co.,  20  Ohio  St.  259;  Weeks  v.  Railroad  Co.,  72  N.  Y.  50. 

59  Henderson  v.  Railroad  Co.,  20  Fed.  430;  Id.,  123  U.  S.  61,  8  Sup.  Ct 
60. 

eo  Weeks  v.  Railroad  Co.,  72  N.  Y.  50,  56;  First  Xat.  Bank  of  Greenfield 
v.  Marietta  &  C.  R.  Co.,  20  Ohio  St.  259. 

si  Van  Horn  v.  Kermit,  4  E.  D.  Smith  (N.  Y.)  453;  Dunn  v.  Steamboat 
Co.,  58  Hun,  461,  12  N.  Y.  Supp.  406;  Mudgett  v.  Steamboat  Co.,  1  Daly  (X. 
Y.)  151;  Gore  v.  Transportation  Co.,  2  DaJy  (N.  Y.)  254;  Macklin  v.  Steamboat 
Co.,  7  Abb.  Prac.  N.  S.  (N.  Y.)  229;  Walsh  v.  The  H.  M.  Wright,  1  Xewb. 
494,  Fed.  Cas.  Xo.  17,115.  But  see  Williams  v.  Packet  Co.,  3  Cent.  Law  J. 
400:  Gleason  v.  Transportation  Co.,  32  Wis.  85;  Dawley  v.  Car  Co.,  109  Mass. 
315.  47  X.  E.  1024. 

e^  Maekliu  v.  Steamboat  Co.,  7  Abb.  Prac.  N.  S.   (N.  Y.)  229;    Gleason  v. 


270  CARRIERS    OF    GOODS.  (Ch.   6 

cient  delivery  of  baggage  to  the  carrier,  is  a  question  involving 
much  perplexity  and  confusion  of  authorities.  Even  if  the  bag- 
gage is  ordinary  and  proper,  and  is  not  retained  in  possession  by 
the  passenger  for  the  purpose  of  taking  care  of  it, — animo  custo- 
diendi, — the  carrier  will  be  liable  only  for  negligence.63  The  Eng- 
lish rule  is  supported  by  weight  of  authority,  and  is  succinctly 
stated  by  Cockburn,  C.  J.,  in  a  case  where  the  carrier  was  held 
liable  for  the  loss  of  a  chronometer,  placed  in  a  seat  in  a  railway 
carriage.  After  stating  that  such  circumstances  must  exist  as 
"lead  irresistibly  to  the  conclusion  that  the  passenger  takes  such 
personal  control  and  charge  of  his  property  as  altogether  to  give 
up  all  hold  upon  the  company,  before  we  can  say  the  company,  as 
carriers,  are  relieved  from  liability  in  case  of  loss,"64  the  learned 
chief  justice  continues:  "What  really  took  place-  appears  to  be 
this:  That,  by  desire  of  plaintiff,  the  porter  of  the  company  placed 
the  article  in  a  carriage,  upon  a  particular  seat,  which  was  to  be 
reserved  for  the  plaintiff.  I  am  far  from  saying  that  no  case  can 
arise  in  which  a  passenger,  having  luggage  which,  by  the  terms  of 
the  contract,  the  company  is  bound  to  convey  to  the  place  of  desti- 
nation, can  release  the  company  from  the  care  and  custody  of  an 
article  by  taking  it  into  his  own  immediate  charge;  but  I  think  the 
circumstances  should  be  very  strong  to  show  such  an  intention 
on  the  part  of  the  passenger,  and  to  relieve  the  company  of  their 
ordinary  liability.  And  it  is  not  because  a  part  of  the  passen- 
ger's luggage,  which  is  to  be  conveyed  with  him,  is,  by  the  mutual 
consent  of  the  company  and  himself,  placed  with  him  in  the  car- 
riage in  which  he  travels,  that  the  company  are  to  be  considered 
as  released  from  their  ordinary  obligations.  Nothing  could  be 
more  inconvenient  than  that  the  practice  of  placing  small  articles, 
which  it  is  convenient  to  the  passenger  to  have  about  him  in  the 
carriage  in  which  he  travels,  should  be  discontinued;  and  if  the 
company  were,  from  the  mere  fact  of  articles  of  this  description 
being  placed  in  a  carriage  with  a  passenger,  to  be  at  once  relieved' 

Transportation  Co.,  32  Wis.  85;  Mudgett  v.  Steamboat  Co.,  1  Daly  (N.  Y.) 
151;  Gore  v.  Transportation  Co.,  2  Daly  (N.  Y.)  254. 

63  Post,  p.  277. 

64  Le  Conteur  v.  Railroad  Co.,  L.  R.  1  Q.  B.  54.     Cf.  Kinsley  v.  Railroad 
Co.,  125  Mass.  54. 


§    102)  BAGGAGE.  277 

from  the  obligation  of  safe  carriage,  it  would  follow  that  no  one 
who  has  occasion  to  leave  the  carriage  temporarily  could  do  so  con- 
sistently with  the  safety  of  his  property.  I  cannot  think,  there- 
fore, we  ought  to  come  to  any  conclusion  which  would  have  the 
effect  of  relieving  the  company,  as  carriers,  from  the  obligation  to 
carry  safely,  which  obligation,  for  general  convenience  of  the  public, 
ought  to  attach  to  them." 

It  is  undoubtedly  the  law  that  when  a  passenger  does  not  de- 
liver his  property  to  the  carrier,  but  retains  exclusive  possession 
and  control  of  it  himself, .  no  liability  rests  on  the  carrier,  in  the 
absence  of  negligence;  as,  for  instance,  where  the  passenger's 
pocket  is  picked,  or  his  overcoat  or  satchel  is  taken  from  a  seat 
occupied  by  him.65  But  there  is  no  such  possession  or  exclusive 
control  in  the  case  of  persons  occupying  berths  in  sleeping  cars, 
and  the  carrier  is  liable  to  them  for  the  loss  of  personal  effects  oc- 
curring through  his  negligence.66  And  in  the  case  of  carriers  by 
water  the  assignment  of  a  state  room  to  a  passenger  is  an  invita- 
tion to  him  to  place  his  ordinary  baggage  there,  with  the  assur- 
ance that  it  will  be  protected,  and  safely  delivered.67 

(c)  When  articles  are  retained  in  the  possession  and  control  of 
the  passenger,  aninio  custodiendi,  of  a  class  which  would  be  proper 
baggage  if  delivered  to  the  carrier,  the  latter  is  liable  only  for 
losses  occasioned  by  his  own  negligence,68  and,  a  fortiori,  if  the 

65  Tower  v.  Railroad  Co.,  7  Hill  (N.  Y.)  47.  See,  also,  Hillis  v.  Railway 
Co.,  72  Iowa,  228,  33  N.  W.  643. 

ee  Pullman  Palace-Car  Co.  v.  Freudenstein,  3  Colo.  App.  540,  34  Pac.  578. 

67  Hutch.  Carr.  §  700;  Mudgett  v.  Steamboat  Co.,  1  Daly  (N.  Y.)  151;  Gore 
v.  Transportation  Co.,  2  Daly  (N.  Y.)  254;  Walsh  v.  The  H.  M.  Wright,  1 
Xe-wb.  494,  Fed.  Cas.  No.  17,115;  Macklin  v.  Steamboat  Co.,  7  Abb.  Prac. 
X.  S.  (X.  Y.)  229.  See,  also,  American  S.  S.  Co.  v.  Bryan,  83  Pa.  St.  446; 
The  R.  E.  Lee,  2  Abb.  (U.  S.)  49,  Fed.  Cas.  Xo.  11,090;  Del  Valle  v.  The 
Richmond,  27  La.  Ann.  90;  Williams  v.  Packet  Co.,  3  Cent.  Law  J.  400;  Ab- 
bott v.  Bradstreet,  55  Me.  530;  Clark  v.  Burns,  118  Mass.  275. 

es  Clark  v.  Burns,  118  Mass.  275;  Pullman  Palace-Car  Co.  v.  Pollock,  69 
Tex.  120,  5  S.  W.  814;  The  Crystal  Palace  v.  Vanderpool,  16  B.  Mon.  (Ky.) 
302.  See,  also,  Tower  v.  Railroad  Co.,  7  Hill  (N.  Y.)  47;  Runyan  v.  Railroad 
Co.,  61  N.  J.  Law,  537,  41  Atl.  367.  The  carrier  is  still  liable  for  negligence. 
American  S.  S.  Co.  v.  Bryan,  83  Pa.  St.  446;  Kinsley  v.  Railroad  Co.,  125 
Mass.  54;  Williams  v.  Packet  Co.,  3  Cent.  Law  J.  400. 


278  CARRIERS    OF    GOODS.  (Ch.  6 

loss  is  occasioned  by  the  negligence  of  the  passenger,  there  can 
be  no  recovery. 

SAME— EFFECTS  OF  OCCUPANTS  OF  SLEEPING  CARS. 

103.  Sleeping-car   companies    are    not    common     carriers, 

either  of  passengers  or  of  their  baggage. 

The  railroad  company  contracts  for  the  transportation  of  both 
the  sleeping  car  and  its  occupants,  and  assumes  the  responsibilities 
and  liabilities  of  the  carrier.  Nevertheless,  a  sleeping-car  company 
is  bound  to  use  ordinary  care  to  protect  the  persons  and  prop- 
erty of  its  occupants,  and  to  prevent  intruders  from  picking  the 
pockets  and  carrying  off  the  clothes  of  the  passengers  while  they 
are  asleep.1  A  sleeping-car  company  is  not  an  innkeeper.2 

BEGINNING  OF  LIABILITY. 

104.  The  liability  of  the   carrier  attaches  -when  goods  are 

accepted  by  him  for  immediate  transportation. 

105.  Acceptance  may  be  presumed  from  conformity  with 

custom  of  carrier   in  this  respect,  or  may  be  con- 
cluded from  the  contract. 

§  103.  i  Pullman  Car  Co.  v.  Gardner,  3  Penny.  (Pa.)  78;  Efron  v.  Car 
Co.,  59  Mo.  App.  641;  Chamberlain  v.  Car  Co.,  55  Mo.  App.  474;  Pullman 
Palace-Car  Co.  v.  Freudenstein,  3  Colo.  App.  540,  34  Pac.  578;  Lewis  v.  Car 
Co.,  143  Mass.  267,  9  N.  E.  615;  Pullman  Palace-Car  Co.  v.  Pollock,  69  Tex. 
120,  5  S.  W.  814;  Same  v.  Gavin,  93  Tenn.  53,  23  S.  W.  70;  Whitney  v.  Car 
Co.,  143  Mass.  243,  9  N.  E.  619;  Pullman  Palace-Car  Co.  v.  Adams  (Ala.)  24 
South.  921;  Williams  v.  Webb,  22  Misc.  Rep.  513,  49  N.  Y.  Supp.  1111;  Id., 
27  Misc.  Rep.  508,  58  N.  Y.  Supp.  300;  Belden  v.  Car  Co.  (Tex.  Civ.  App.)  43 
S.  W.  22;  Voss  v.  Car  Co.,  16  Ind.  >pp.  271,  43  N.  E.  20,  and  44  N.  E.  1010; 
Pullman  Palace-Car  Co.  v.  Hall  (Ga.)  32  S.  E.  923. 

2  Pullman  Palace-Car  Co.  v.  Smith,  73  111.  360;  Falls  River  &  Machine  Co. 
v.  Pullman  Palace-Car  Co.,  6  Ohio  Dec.  85,  4  Ohio  N.  P.  26;  Pullman  Palace- 
Car  Co.  v.  Hall  (Ga.)  32  S.  E.  923. 


§    106)  DELIVERY    FOR   IMMEDIATE    TRANSPORTATION.  279 


SAME— DELIVERY  FOR  IMMEDIATE  TRANSPORTATION. 

106.  The  responsibility  of  the  carrier  does  not  attach  un- 
til there  has  been  a  complete  delivery  to  him  of  the 
goods  for  the  purpose  of  immediate  transportation.1 

To  complete  the  delivery  of  the  goods  to  the  carrier,  it  is  essen- 
tial that  the  property  be  placed  in  a  position  to  be  cared  for,  and 
under  the  control  of  the  carrier  or  his  agent,  with  his  knowledge 
and  consent.2  After  the  carrier  has  accepted  the  goods  for  ship- 
ment, it  is,  of  course,  immaterial  what  disposition  he  may  make 
of  them  to  suit  his  convenience.  His  liability  as  a  carrier  remains 
in  force.3  But  if  the  goods  are  held  by  the  carrier  pending  some 
further  action  by  the  shipper  before  they  can  be  forwarded,  the 
delivery  is  not  complete,  and  the  carrier  is  not  liable  as  such.* 
So  long  as  the  goods  remain  in  the  carrier's  hands  for  any  other 
purpose  than  immediate  shipment, — as,  for  example,  awaiting  some 
further  action  by  the  shipper, — the  liability  imposed  is  that  of  a 
warehouseman.5  The  relation  between  shipper  and  carrier  in  these 

§§  104-106.  i  Michigan  Southern  &  N.  I.  R.  Co.  v.  Shurtz,  7  Mich.  515; 
Grand  Tower  Mfg.  &  Transp.  Co.  v.  Ullrnan,  89  111.  244;  Clarke  v.  Needles, 
25  Pa.  St.. 338;  Merriam  v.  Railroad  Co.,  20  Conn.  354;  Blossom  v.  Griffin, 
•13  X.  Y.  569;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Murphy,  60  Ark.  333,  30  S. 
W.  419;  London  &  L.  Fire  Ins.  Co.  v.  Rome,  W.  &  O.  R.  Co.,  144  N.  Y.  200, 
39  X.  E.  79;  Id.,  68  Hun,  598,  23  N.  Y.  Supp.  231;  Stewart  v.  Gracy,  93  Tenn. 
314,  27  S.  W.  664;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Trawick,  80  Tex.  270,  15  S. 
W.  568,  and  18  S.  W.  948;  McCullough  v.  Railway  Co.,  34  Mo.  App.  23;  Bar- 
ron  v.  Eldredge,  100  Mass.  455;  Illinois  Cent.  R.  Co.  v.  Smyser,  38  111.  354. 

2  Grosvenor  v.  Railroad  Co.,  39  N.  Y.  34.     See,  also,  Bergheim  v.  Railway 
Co.,  3  C.  P.  Div.  221;    St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Murphy,  60  Ark.  333, 
30  S.  W.  419. 

3  Rogers  v.  Wheeler,  52  N.  Y.  262;    Fitchburg  &  W.  R.  Co.  v.  Hanna,  6 
Gray  (Mass.)  539;    Boehni  v.  Combe,  2  Maule  &  S.  172,  174;    Hutch.  Carr.  § 
89. 

*  Michigan  Southern  &  N.  I.  R.  Co.  v.  Shurtz,  7  Mich.  515;  Moses  v.  Rail- 
road Co.,  24  N.  H.  71;  Rogers  v.  Wheeler,  52  N.  Y.  262;  O'Neill  v.  Rail- 
road Co.,  60  N.  Y.  138;  Wade  v.  Wheeler.  3  Lans.  (X.  Y.)  201;  Barren  v. 
Eldredge,  100  Mass.  455;  Fitc-hburg  &  W.  R.  Co.  v.  Hanua,  6  Gray  (Mass.) 
539;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Knight,  122  U.  S.  79,  7  Sup.  Ct.  1132. 

s  St.  Louis,  A.  &  T.  H.  R.  Co.  v.  Montgomery,  39  111.  335;  Barren  v.  El- 
dredge, 100  Mass.  455;  Mt.  Vernon  Co.  v.  Railroad  Co.,  92  Ala.  296,  8  South. 


280  CARRIERS   OF    GOODS.  (Ch.  6 

circumstances  is  a  question  of  law  to  be  determined  on  the  facts 
of  the  individual  case.6 

Place  of  Delivery. 

The  place  of  delivery  of  goods  is  immaterial,  provided  there  is 
an  acceptance  of  them  by  the  carrier.7  But,  if  the  delivery  is  not 
made  at  a  regular  shipping  point,  no  acceptance  will  be  presumed.8 
There  must  be  an  actual  acceptance  by  the  carrier  or  an  agent  in 
full  authority.* 

SAME— ACCEPTANCE. 

107.  No  liability  attaches  to  the  carrier  until  there  has 
been  an  actual  or  constructive  acceptance  by  him 
of  the  goods. 

The  acceptance  may  be  either  actual  or  constructive,1  but  there 
can  be  no  liability  on  the  part  of  the  carrier,  as  such,  until  he 
has  accepted  the  goods.2  In  the  absence  of  special  agreement,  the 
reasonable  rules  and  regulations  of  the  carrier  as  to  place  and 

G87;  O'Neill  v.  Railroad  Co.,  60  N.  Y.  138;  Schmidt  v.  Railway  Co.,  90  Wis. 
504,  63  N.  W.  1057. 

e  Story,  Bailm.  §  535;  Buckland  v.  Express  Co.,  2  Redf.  Am.  Ry.  Cas.  46; 
Judson  v.  Railroad  Corp.,  4  Allen  (Mass.)  520;  Barron  v.  Eldredge,  100  Mass. 
455. 

'  Phillips  v.  Earle,  8  Pick.  (Mass.)  182. 

8  Blanchard  v.  Isaacs,  3  Barb.  (N.  Y.)  388. 

»  Hutch.  Carr.  §  87;  Cronkite  v.  Wells,  32  N.  Y.  247;  Southern  Exp.  Co. 
v.  Newby,  36  Ga.  635.  Cf.  Witbeck  v.  Schuyler,  44  Barb.  (N.  Y.)  469;  Mis- 
souri Coal  &  Oil  Co.  v.  Hannibal  &  St.  J.  R.  Co.,  35  Mo.  84. 

§  107.  i  Merriam  v.  Railroad  Co.,  20  Conn.  354;  Converse  v.  Transporta- 
tion Co.,  33  Conn.  166;  Ford  v.  Mitchell,  21  Ind.  54;  Green  v.  Railroad  Co., 
38  Iowa,  100,  41  Iowa,  410;  Wright  v.  Caldwell,  3  Mich.  51;  Packard  v. 
Getman,  6  Cow.  (N.  Y.)  757;  Freeman  v.  Newton,  3  E.  D.  Smith  (N.  Y.)  246; 
Illinois  Cent.  R.  Co.  v.  Srnyser,  38  111.  354;  O'Bannon  v.  Express  Co.,  51  Ala. 
481;  Yoakum  v.  Dryden  (Tex.  Civ.  App.)  26  S.  W.  312;  Evansville  &  T.  H.  R. 
Co.  v.  Keith,  8  Ind.  App.  57,  35  N.  E.  296.  Delivery  of  bill  of  lading  not  es- 
sential. Meloche  v.  Railway  Co.  (Mich.)  74  N.  W.  301;  Berry  v.  Railway  Co., 
122  N.  C.  1002,  30  S.  E.  14;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Compton  (Tex.  Civ. 
App.)  38  S.  W.  220.  Delivery  of  warehouse  receipts  with  order  for  delivery 
of  the  goods  not  a  constructive  delivery.  Stewart  v.  Gracy,  93  Tenn.  314,  27 
S.  W.  664. 

2  Missouri  Pac.  Ry.  Co.  v.  McFadden,  154  U.  S.  155,  14  Sup.  Ct.  990. 


§    108)  TERMINATION    OF    LIABILITY.  281 

mode  of  shipment  will  govern.  And  so,  while  a  deposit  of  goods  on 
a  dock  would  be  insufficient  to  bind  the  carrier,  in  the  absence  of 
notice,3  it  would  be  otherwise  if  there  were  an  agreement  that 
goods  might  be  delivered  at  that  or  any  other  designated  place 
without  any  notice.*  In  the  latter  case  an  acceptance  is  presumed. 
There  is  likewise  a  presumption  of  acceptance  where  goods  are  de- 
livered at  a  particular  place,  in  accordance  with  an  established 
custom  or  usage.5 

TERMINATION  OF  LIABILITY. 

108.  The  liability  of  a  common  carrier  terminates  -when 
the  transportation  is  completed  according  to  the 
terms  of  the  contract.  Ordinarily,  this  occurs  either 

by 

(a)  Delivery  to  the  consignee,  or 

(b)  Delivery  to  a  connecting  carrier. 

Ordinarily,  the  liability  of  the  common  carrier  does  not  termi- 
nate until  his  contract  of  carriage  is  fully  performed.1  Generally, 
the  performance  of  the  contract  is  accompanied  by  surrender  of 
possession,2  but  the  possession  by  the  carrier,  as  such,  may  termi- 
nate, and  the  goods  still  be  retained  by  him  in  the  capacity  of  ware- 
houseman. 

s  Packard  v.  Getiuan,  G  Cow.  (N.  Y.)  757;  Merriam  v.  Railroad  Co.,  20 
Conn.  354;  or  merely  leaving  them  on  his  premises,  Grosvenor  v.  Railroad 
Co.,  39  N.  Y.  34;  Bucknian  v.  Levi,  3  Camp.  414. 

*  Hutch.  Carr.  §  90;    Wright  v.  Caldwell,  3  Mich.  51. 

B  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Foster,  104  Ind.  293,  4  N.  E.  22;  Wright 
v.  Caldwell,  3  Mich.  51;  Converse  v.  Transportation  Co.,  33  Conn.  166;  Mer- 
riam v.  Railroad  Co.,  20  Conn.  354;  Green  v.  Railroad  Co.,  38  Iowa,  100; 
Id.,  41  Iowa,  410;  Montgomery  &  E.  Ry.  Co.  v.  Kolb,  73  Ala.  396. 

§  108.  i  Stone  v.  Waitt,  31  Me.  409;  De  Mott  v.  Laraway,  14  Wend. 
(N.  Y.)  225;  Michigan  Southern  &  N.  I.  R.  Co.  v.  Day,  20  111.  375;  Western 
Transp.  Co.  v.  Newhall,  24  111.  466. 

2  But  the  carrier  must  obey  instructions  of  shipper  or  owner  of  goods 
as  to  their  delivery.  Michigan  Southern  &  N.  I.  R.  Co.  v:  Day,  20  111.  375. 
The  carrier's  risk  ends  if  the  consignee  assumes  control  of  the  goods  be- 
fore they  Lave  arrived  at  place  of  delivery.  Stone  v.  Waitt,  31  Me.  409. 


282  CARRIERS    OF    GOODS.  (Ch.  6 


SAME— DELIVERY  TO  CONSIGNEE. 

109.  Delivery  to  the  consignee  is  effected 

(a)  By  a  personal  delivery  to  the   consignee,  -when  it  is 

required  by  contract  or  custom;  or 

(b)  By  notice  of  arrival  of  goods  and  reasonable  oppor- 

tunity to  remove  them;  or 

(c)  By  the  arrival  (in   most  states)  of  the  goods  at  the 

usual  depot  of  the  company. 

Personal  Delivery. 

The  conditions  which,  at  an  earlier  day,  made  the  custom  of  per- 
sonal delivery  almost  universal,  have  nearly  disappeared  with  the 
advent  of  improved  means  of  transportation.1  When,  however,  the 
same  primitive  means  are  still  employed,  the  requirements  of  de- 
livery are  unchanged.2  The  duty  of  the  different  kinds  of  carriers 
as  to  personal  delivery  has  been  so  well  settled  by  adjudication  that 
it  is  to-day  a  matter  of  law,  rather  than  of  custom.  On  account 
of  the  mode  of  transportation,  personal  delivery  is  not  required 
of  either  carriers  by  water3  or  railroads.4  Personal  delivery  is, 
however,  required  of  express  companies,5  except  at  small  stations 
and  villages.6 

§  109.     i  Fenner  v.  Railroad  Co.,  44  N.  Y.  505. 

*  Fisk  v.  Newton,  1  Denio  (N.  Y.)  45;    Gibson  v.  Culver,  17  Wend.  (N.  Y.) 
305;    Storr  v.  Crowley,  1  McClel.  &  Y.  129;    Hemphill  v.  Clienie,  6  Watts  & 
S.  (Pa.)  62;    Eagle  v.  White.  6  Whart.  (Pa.)  505;   Bansemer  v.  Railway  Co., 
25  Ind.  434. 

s  Gibson  v.  Culver,  17  Wend.  (N.  Y.)  305;  Cope  v.  Cordova,  1  Rawle  (Pa.) 
203;  Union  Steamboat  Co.  v.  Knapp.  73  111.  506;  Chickering  v.  Fowler,  4 
Pick.  (Mass.)  371. 

*  Hutch.  Carr.  (2d  Ed.)  §  367;    Merchants'  Dispatch  Transp.  Co.  v.  Hal- 
lock,  64  111.  284;    Thomas  v.  Railroad  Corp.,  10  Mete.  (Mass.)  472;    Norway 
Plains  Co.  v.  Railroad  Co.,   1  Gray   (Mass.)  263;    Fenner  v.   Railroad   Co., 
44  N.  Y.  505. 

e  Baldwin  v.  Express  Co.,  23  111.  197;  American  Merchants'  Union  Exp. 
Co.  v.  Schier,  55  111.  140;  Same  v.  Wolf,  79  111.  430;  Witbeck  v.  Holland, 

«  Baldwin  v.  Express  Co.,  23  111.  197;  Gulliver  v.  Express  Co.,  38  111. 
503.  It  has  been  held  that  the  consignor  must  have  known  of  the  usage 
when  he  shipped  the  goods,  or  he  is  not  bound  by  it  Packard  v.  Earle, 
113  Mass.  280. 


§    109)  DELIVERY    TO    CONSIGNEE.  283 

Where  a  persoiml  delivery  is  necessary,  it  must  be  made  to  the 
consignee  in  person,  or  to  an  authorized  representative,7  and  at 
a  reasonable  time.8  It  must  be  made  at  his  residence  or  office,9 
and  not  at  the  foot  of  the  stairs  leading  to  his  apartments.10  If, 
on  a  proper  tender  of  delivery,  the  consignee  refuses  to  accept,  or 
to  vpay  the  reasonable  charges,  the  carrier  may  store  the  goods,11 
and  is  no  longer  liable  as  a  common  carrier,12  but  as  a  warehouse- 
man.13 If  the  consignee  is  dead,  or  cannot  be  found  after  reason- 
able diligence,  the  carrier's  liability  as  such  terminates.14  But, 
if  the  carrier  knows  that  the  goods  are  the  property  of  the  con- 
signor, it  is  his  duty  to  advise  him  of  the  nondelivery,18  otherwise 
if  he  has  no  knowledge  as  to  the  ownership.16 

45  N.  Y.  13;  American  Union  Exp.  Co.  v.  Robinson,  72  Pa.  St.  274;  Union 
Exp.  Co.  v.  Ohleman,  92  Pa.  St.  323;  Marshall  v.  Express  Co.,  7  Wis.  1; 
Southern  Exp.  Co.  v.  Armstead,  50  Ala.  350;  Sullivan  v.  Thompson,  99 
Mass.  259;  Bennett  v.  Express  Co.,  12  Or.  49,  6  Pac.  160;  Gary  v.  Express 
Co.  (Tex.  Civ.  App.)  40  S.  W.  845. 

T  Southern  Exp.  Co.  v.  Everett,  37  Ga.  688;  Sullivan  v.  Thompson,  99 
Mass.  259.  Delivery  to  clerk.  Sullivan  v.  Thompson,  99  Mass.  259.  De- 
livery of  consignment  "in  care  of"  another.  United  States  Exp.  Co.  v. 
Hammer,  21  Ind.  App.  186,  51  N.  E.  953. 

s  Marshall  v.  Express  Co.,  7  Wis.  1;  Merwin  v.  Butler,  17  Conn.  138; 
Hill  v.  Humphreys,  5  Watts  &  S.  (Pa.)  123. 

e  Gibson  v.  Culver,  17  Wend.  (N.  Y.)  305;  Fisk  v.  Newton,  1  Denio  (N. 
Y.)  45;  Duff  v.  Budd,  3  Brod.  &  B.  177;  Storr  v.  Crowley,  1  McClel.  &  Y. 
129;  Hyde  v.  Navigation  Co.,  5  Term  R.  389. 

10  Haslam  v.  Express  Co.,  6  Bosw.  (N.  Y.)  235. 

11  Schouler,  Bailm.  513.     And  see  Hawkins  v.  The  Hattie  Palmer,  63  Fed. 
1015. 

12  storr  v.  Crowley,  1  McClel.  &  Y.  129;    Illinois  Cent.  R.  Co.  v.  Carter, 
165  111.  570,  46  N.  E.  374;    Manhattan  Rubber  Shoe  Co.  v.  Chicago,  B.  &  Q. 

'  R.  Co.,  9  App.  Div.  172,  41  N.  Y.  Supp.  83. 

is  Weed  v.  Barney,  45  N.  Y.  344;    Gibson  v.  Express  Co.,  1  Hun,  387. 

i*  Adams  Exp.  Co.  v.  Darnell,  31  Ind.  20;  Marshall  v.  Express  Co.,  7 
Wis.  1;  Clendaniel  v.  Tuckerman,  17  Barb.  184;  Roth  v.  Railroad  Co.,  34 
N.  Y.  548;  Alabama  &  Tenn.  R.  Co.  v.  Kidd,  So  Ala.  209;  Hasse  v.  Ex- 
press Co.,  94  Mich.  133,  53  N.  W.  918. 

is  American  Merchants'  Union  Exp.  Co.  v.  Wolf,  79  111.  430;  Stephenson 
v.  Hart,  4  Bing.  476,  484. 

is  Kremer  v.  Express  Co.,  6  Coldw.  (Tenn.)  356;  Fisk  v.  Newton,  1 
Denio  (N.  Y.)  45;  Weed  v.  Barney,  45  N.  Y.  344;  Neal  v.  Railroad  Co..  8 
Jones,  Law  (N.  C.)  482;  Manhattan  Rubber  Shoe  Co.  v.  Railroad  Co.,  9 


284  CARRIKRS    OF    GOODS.  (Ch.   6 

D  livery  of  Goods  C.  0   D. 

When  the  carrier  receives  goods  for  transportation  C.  O.  D.,  the 
additional  duty  devolves  on  him  to  collect  and  return  the  money 
to  the  shipper.17  Such  liability  arises,  however,  only  from  con- 
tract, express  or  implied;18  but  a  previous  course  of  dealing  be- 
tween the  parties  may  imply  such  contract.19  In  all  such  cases  the 
instructions  of  the  consignor  form  part  of  the  contract  of  delivery, 
and  must  be  fully  carried  out.20 

Notice  of  Arrival —  Carriers  ty  Water. 

The  carrier  of  goods  by  water  need  not  make  a  personal  deliv- 
ery,21 but  may  land  them  at  a  wharf  at  the  port  of  destination.22 
If  no  other  point  is  designated,23  they  should  be  landed  at  the  usual 
wharf.24 

Ordinarily,  if  there  is  but  one  consignee,  or  if  all  consignees  are 
unanimous,  the  carrier  should  consult  their  convenience  as  to  one 
of  several  wharves  within  the  same  port.25  Where  there  is  a  num- 

App.  Div.  172,  41  N.  Y.  Supp.  83.  Mr.  Hutchlnson  thinks  that  when  the 
consignee  refuses  to  receive  the  goods  there  should  be  a  presumption  of 
ownership  in  the  consignor.  Hutch.  Carr.  (2d  Ed.)  §  384. 

17  United  States  Exp.  Co.  v.  Keefer,  59  Ind.  263.  As  to  the  carrier's 
liability  for  the  safe  return  of  the  money,  see  Harrington  v.  McShane,  2 
Watts  (Pa.)  443. 

is  American  Exp.  Co.  v.  Lesem,  39  111.  313;  Chicago  &  N.  R.  Co.  v.  Mer- 
rill, 48  111.  425;  Southern  Ry.  Co.  v.  Kinchen,  103  Ga.  186,  29  S.  E.  816; 
Louisville  &  N.  R.  Co.  v.  Hartwell,  99  Ky.  436,  36  S.  W.  183. 

is  American  Exp.  Co.  v.  Lesem,  39  111.  313. 

20  Murray  v.  Warner,  55  N.  H.  546;  Meyer  v.  Lemcke,  31  Ind.  208;   Feiber 
v.  Telegraph  Co.  (Com. -PI.)  3  N.  Y.  Supp.  116;    Libby  v.  Ingalls,  124  Mass. 
503.     But  the  consignor  may  ratify  a  delivery  not  in  accordance  with  his 
instructions.     Rathbun  v.  Steamboat  Co.,  76  N.  Y.  376. 

21  Ante,  p.  282. 

22  Chickering  v.  Fowler,  4  Pick.  (Mass.)  371;    Segura  v.  Reed,  3  La.  Ann. 
695;    Goodwin  v.   Railroad  Co.,   50  N.  Y.  154,   10  Am.   Rep.  457;    Scott  v. 
Province,  1  Pittsb.  R.  189. 

23  Johnston  v.  Davis,  60  Mich.  56,  26  N.  W.  830. 

24  Richmond  v.  Steamboat   Co.,  87  N.   Y.   240;    The  Boston,   1   Low.  464, 
Fed.  Gas.  No.   1,671;    The  E.  H.  Fittler,  1  Low.  114,  Fed.  Cas.  No.  4,311; 
Montgomery  v.  The  Port  Adelaide,  38  Fed.  753;    Dovato  v.  Barrels  of  Plum- 
bago, 20  Fed.  510;    Gatliffe  v.  Bourne,  4  Bing.   (X.  C.)  314;    Salmon  Falls 
Mfg.  Co.  v.  The  Tangier,  1  Cliff.  396,  Fed.  Cas.  No.  12,266. 

so  Richmond  v.  Steamboat  Co.,  87  N.  Y.  240;    Dixon  v.  Dunham,  14  111. 


§    109)  DELIVERY    TO    CONSIGNEE.  285 

ber  of  consignees,  the  same  rule  obtains  as  to  the  convenience  of 
a  majority,  if  the  preference  is  made  known  to  the  master  within 
a  reasonable  time.28 

A  reasonable  time  must  be  allowed  by  the  carrier  for  removal 
of  the  goods,  and  he  cannot  require  their  removal  on  Sunday,  or 
on  a  legal  holiday  on  which  labor  is  forbidden.27  And  until  the 
goods  have  been  placed  by  the  carrier  in  a  situation  favorable  for 
removal,  his  liability  as  insurer  continues.28  But  the  consignee  is 
bound  to  act  with  due  promptness  in  removing  the  goods,  and  his 
failure  to  do  so  will  relieve  the  carrier  of  his  liability  as  insurer.29 
The  carrier  must  use  due  diligence  to  discover  and  notify  the  con- 
signee of  the  arrival  of  the  goods,  and  his  failure  to  do  so  will  ren- 
der him  liable  for  consequent  damages.30  The  circumstances  of 
each  case  control  in  determining  what  is  due  diligence  in  this  re- 
spect, and  is  always  a  question  of  fact  for  the  jury.31  Reasonable 
notice  and  reasonable  time  are  such  as  give  the  consignee  time 
enough,  under  all  proper  and  ordinary  circumstances,  and  proceed- 
ing in  the  ordinary  mode  of  those  engaged  in  the  same  business, 

324;  The  Sultana  v.  Chapman,  5  Wis.  454;  The  E.  H.  Fittler,  1  Low.  114, 
Fed.  Cas.  No.  4,311;  O'Rourke  v.  Tons  of  Coal,  1  Fed.  619;  Teilman  v. 
Plock,  21  Fed.  349;  The  Mascotte,  2  C.  C.  A.  400,  51  Fed.  606. 

26  The  E.  H.  Fittler,  1  Low.  114,  Fed.  Cas.  No.  4,311;   The  Boston,  1  Low. 
464,  Fed.  Cas.  No.  1,671;   Devato  v.  Barrels  of  Plumbago,  20  Fed.  510. 

27  Richardson  v.  Goddard,  23  How.  28;    Gates  v.  Ryan,  37  Fed.  154.     As 
to  the  Fourth  of  July,  see  Russell  Mfg.  Co.  v.  New  Haven  Steamboat  Co., 
50  X.  Y.  121;    Scheu  v.  Benedict,  116  N.  Y.  510,  22  N.  E.  1073. 

2  s  The  Eddy,  5  Wall.  481;  The  Ben  Adams,  2  Ben.  445,  Fed.  Cas.  No. 
1,289;  Goodwin  v.  Railroad  Co.,  58  Barb.  (X.  Y.)  195.  See,  also,  Xorton  v. 
The  Richard  Winslow,  67  Fed.  259;  Kirk  v.  Railway  Co.,  59  Minn.  161, 
60  X.  W.  1084. 

29  Redmond  v.  Steamboat  Co.,  46  X.  Y.  578;  Hedges  v.  Railroad  Co.,  49 
N.  Y.  223;  Liverpool  &  G.  W.  Steam  Co.  v.  Suitter,  17  Fed.  695;  De  Grau 
v.  Wilson,  Id.  698;  Constable  v.  Steamship  Co.,  154  U.  S.  51,  14  Sup.  Ct. 
1062,  38  L.  Ed.  903. 

so  Zinn  v.  Steamboat  Co.,  49  X.  Y.  442;  Sherman  v.  Railroad  Co.,  64  X. 
Y.  254;  Union  Steamboat  Co.  v.  Knapp,  73  111.  506;  Illinois  Cent.  R.  Co.  v. 
Carter,  62  111.  App.  618;  Price  v.  Powell,  3  N.  Y.  322;  Barclay  v.  Clyde, 
2  E.  D.  Smith  (X.  Y.)  95. 

si  Zinii  v.  Steamboat  Co.,  49  X.  Y.  442. 


286  CARRIERS    OF   GOODS.  (Ch.   & 

to  provide  for  the  care  and  removal  of  the  goods.32  The  obliga- 
tions as  to  delivery  are  the  same  with  carriers  by  inland  waters 
as  by  sea.88  The  giving  of  notice  may  be  waived  by  custom  of  the 
parties,84  or  a  usage  dispensing  with  notice  may  be  shown  by  the 
carrier.36  But  no  such  usage,  or  contract  waiving  notice,  will  re- 
lieve the  carrier  from  losses  occurring  through  his  negligence.36 

The  carrier  is  not  justified  in  abandoning  or  exposing  to  injury 
goods  which  the  consignee  refuses  or  fails  to  accept.37  In  such 
a  contingency  it  is  his  duty  to  see  them  properly  stored,  whereby 
the  liability  is  shifted  from  the  carrier  to  the  warehouseman.38  But, 
so  long  as  he  has  the  custody  of  the  goods,  notwithstanding  the 
fact  of  a  constructive  delivery,  it  is  his  duty  to  use  ordinary  care 
to  protect  and  preserve  the  property.39 

Delivery  Tyy  Railroad  Companies. 

In  some  states  it  is  held  that  the  rule  as  to  delivery  is  the  same 
which  governs  carriers  by  water.40  It  is  said  that  the  liability  of 

32  Hale,  Bailm.  &  Carr.  p.  455;  Constable  v.  Steamship  Co.,  154  U.  S. 
51,  14  Sup.  Ct.  1062. 

ss  Me  Andrew  v.  Whitlock,  52  N.  Y.  40. 

34  Russell  Mfg.  Co.  v.  New  Haven  Steamboat  Co.,  50  N.  Y.  121;  Ely  v. 
Same,  53  Barb.  (N.  Y.)  207. 

ss  Gibson  v.  Culver,  17  Wend.  (N.  Y.)  305;  McMasters  v.  Railroad  Co.,  69 
Pa.  St.  374;  Dixon  v.  Dunham,  14  111.  324;  Crawford  v.  Clark,  15  111.  161; 
Farmers'  &  Mechanics'  Bank  v.  Champlain  Transp.  Co.,  16  Vt.  52,  23  Vt.  186; 
Sleade  v.  Payne,  14  La.  Ann.  453;  Stone  v.  Rice,  58  Ala.  95;  Gatliffe  v. 
Bourne,  4  Bing.  N.  C.  314,  329;  Garsicle  v.  Navigation  Co.,  4  Term  R.  581. 

86  The  Surrey,  26  Fed.  791;  The  Spartan,  25  Fed.  44,  56;  New  Jersey  Steam 
Nav.  Co.  v.  Merchants'  Bank,  6  How.  344;  Bank  of  Kentucky  v.  Adams  Exp. 
Co.,  93  U.  S.  174;  Mynard  v.  Railroad  Co.,  71  N.  Y.  180;  The  Hadji,  20  Fed. 
875. 

ST  Hermann  v.  Goodrich,  21  Wis.  543;  Merwin  v.  Butler,  17  Conn.  138; 
Chickering  v.  Fowler,  4  Pick.  (Mass.)  371;  Dean  v.  Vaccaro,  2  Head  (Tenn.) 
488;  Shenk  v.  Propeller  Co.,  60  Pa.  St.  109;  Northern  v.  Williams,  6  La.  Ann. 
578;  Segura  v.  Reed,  3  La.  Ann.  695;  Tarbell  v.  Shipping  Co.,  110  N.  Y.  170, 
17  N.  E.  721;  Redmond  v.  Steamboat  Co.,  46  N.  Y.  578;  McAndrew  v.  Whit- 
lock,  52  N.  Y.  40;  The  City  of  Lincoln,  25  Fed.  835,  839;  Richardson  v. 
Goddard,  23  How.  28,  39;  The  Graf  ton,  1  Blatchf.  173,  Fed.  Cas.  No.  5,655. 

ss  Redmond  v.  Steamboat  Co.,  46  N.  Y.  578. 

8»  Tarbell  v.  Shipping  Co.,  110  N.  Y.  170,  17  N.  E.  721. 

*o  Moses  v.  Railroad  Co.,  32  N.  H.  523;  Anniston  &  A.  R.  Co.  v.  Ledbetter,. 
92  Ala.  326,  9  South.  73;  Columbus  &  W.  Ry.  Co.  v.  Ludden,  89  Ala.  612,  T 


§    109)  DELIVERY    TO    CONSIGNEE.  287 

the  railroad  as  a  carrier  terminates  only  with  its  control  over  the- 
goods,  and  that  control  must  be  deemed  to  continue  until  there  has 
been  some  act  which  is  legally  equivalent  to  a  delivery.41  Under 
this  rule  the  carrier  must  notify  the  consignee  of  the  arrival  of  the 
goods,  and  allow  him  a  reasonable  time  for  their  removal.42  Pe- 
culiar or  unusual  circumstances  of  the  consignee  will  not  be  con- 
sidered in  determining  what  is  a  reasonable  time.43  If  the  goods 
are  held  longer  than  a  reasonable  tune,  to  suit  the  convenience  of 
the  consignee,  the  carrier  becomes  merely  a  bailee  for  hire.44  So, 
also,  if  the  consignee  or  his  authorized  agent  is  present,  and  sees 
the  arrival  of  the  goods,  and  has  an  opportunity  to  take  them. 

South.  471;  Louisville  &  X.  R.  Co.  v.  Oden,  80  Ala,  38;  Missouri  Pac.  Ry. 
Co.  v.  Nevill,  60  Ark.  375,  30  S.  W.  425;  Missouri  Pac.  Ry.  Co.  v.  Wichita 
Wholesale  Groceiy  Co.,  55  Kan.  525,  40  Pac.  899;  Leavenworth,  L.  &  G.  R. 
Co.  v.  Mails,  16  Kau.  333;  Jeft'ersonville  R.  Co.  v.  Cleveland,  2  Bush  (Ky.)- 
4GS;  Maignan  v.  Railroad  Co.,  24  La.  Ann.  333;  Buckley  v.  Railroad  Co.,  18 
Mich.  121;  Feige  v.  Railroad  Co.,  62  Mich.  1.  28  N.  W.  685;  Pinney  v.  Rail- 
road Co.,  19  Minn.  251  (Gil.  211);  Derosia  v.  Railroad  Co.,  18  Minn.  133  (GiL 
119);  Kirk  v.  Railway  Co.,  59  Minn.  161,  60  N.  W.  1084;  Mills  v.  Railroad 
Co.,  45  X.  Y.  622;  Hedges  v.  Railroad  Co.,  49  X.  Y.  223;  Rawson  v.  Holland. 
59  X.  Y.  611;  McKinney  v.  Jewett,  90  X.  Y.  267;  McDonald  v.  Railroad  Corp.^ 
34  X.  Y.  497;  Fenner  v.  Railroad  Co.,  44  X.  Y.  505;  Sprague  v.  Railroad  Co., 
52  X.  Y.  637;  Faulkner  v.  Hart,  82  X.  Y.  413;  Pelton  v.  Railroad  Co.,  54  X. 
Y.  214;  Tarbell  v.  Shipping  Co.,  110  X.  Y.  170,  17  N.  E.  721;  Lake  Erie  &  W. 
R.  Co.  v.  Hatch,  52  Ohio  St.  408,  39  X.  E.  1042;  Gaines  v.  Insurance  Co., 
28  Ohio  St.  418;  Hirsch  v.  The  Quaker  City,  2  Disn.  (Ohio)  144;  Lake  Erie- 
&  W.  R.  Co.  v.  Hatch,  6  Ohio  Cir.  Ct.  R.  230;  Ouimit  v.  Henshaw,  35  Vt. 
604;  Blumenthal  v.  Brainerd,  38  Yt.  402;  Winslow  v.  Railroad  Co.,  42  Vt. 
700;  Wood  v.  Crocker,  18  Wis.  345;  Parker  v.  Railway  Co.,  30  Wis.  689; 
Lenike  v.  Railway  Co.,  39  Wis.  449;  Michigan  Cent.  R.  Co.  v.  Mineral  Springs 
Mfg.  Co.,  16  Wall.  318.  This  is  also  the  rule  in  England.  Mitchell  v.  Rail- 
way Co.,  L.  R.  10  Q.  B.  256. 

41  Moses  v.  Railroad  Co.,  32  X.  H.  523. 

«  Roth  v.  Railroad  Co.,  34  X.  Y.  548;  Hedges  v.  Railroad  Co.,  49  N.  Y. 
223;  Lemke  v.  Railway  Co.,  39  Wis.  449;  Columbus  &  W.  Ry.  Co.  v.  Ludden, 
89  Ala.  612,  7  South.  471. 

43  Moses  v.  Railroad  Co.,  32  X.  H.  523;  Wood  v.  Crocker,  18  Wis.  345; 
Lenike  v.  Railway  Co.,  39  Wis.  449;  Derosia  v.  Railroad  Co.,  18  Minn.  133 
(Gil.  119);  Pinney  v.  Railroad  Co.,  19  Minn.  251  (Gil.  211);  Railroad  Co.  v. 
Maris,  16  Kau.  333. 

"  Moses  v.  Railroad  Co.,  32  X.  H.  523;  Frank  v.  Railway  Co.,  57  Mo.  App. 
ISL 


288  CARRIERS    OF    GOODS.  (Ch.   0 

away.48     And  in  such  circumstances  the  carrier  may  charge  a  rea- 
sonable amount  for  storage.48 

Arrival  at  Depot. 

Under  the  Massachusetts  rule  the  liability  of  the  railroad  com- 
pany as  a  common  carrier  ceases  when  the  goods  arrive  at  the 
destination,  and  are  transferred  from  the  cars  to  the  warehouse 
of  the  company.47  This  rule  has  been  followed  in  a  large  number 
of  states,  and  may  now  be  considered  as  embodying  the  generally 
accepted  doctrine  on  this  point.48  If  it  is  the  duty  of  the  consignee 
to  unload  the  goods  from  the  car  in  which  they  arrive,  the  car- 
rier's liability  does  not  terminate  until  it  has  placed  the  car  in  a 
position  suitable  for  the  purpose.49 

*  5  Moses  v.  Railroad  Co.,  32  N.  H.  523;  Miller  v.  Mansfleld,  112  Mass. 
260;  Ban-on  v.  Eldredge,  100  Mass.  455;  Goold  v.  Chapin,  20  N.  Y.  259;  Weed 
v.  Barney,  45  N.  Y.  344;  Tarbell  v.  Shipping  Co.,  110  N.  Y.  170,  17  N.  E. 
721;  Brown  v.  Raihvay  Co.,  54  N.  H.  535;  Kennedy  v.  Railroad  Co.,  74  Ala. 
430;  Alabama  &  T.  R.  Co.  v.  Kidd,  35  Ala.  209;  Cairns  v.  Robins,  8  Mees. 
&  W.  258;  Mitcbell  v.  Railway  Co.,  L.  R.  10  Q.  B.  256. 

46  White  v.  Humphrey,  11  Q.  B.  43;    Norfolk  &  W.  R.  Co.  v.  Adams,  90 
Va.  393,  18  S.  E.  673;   Baumbach  v.  Railway  Co.,  4  Tex.  Civ.  App.  650,  23  S. 
W.  693;   Cairns  v.  Robins,  8  Mees.  &  W.  258. 

47  Norway  Plains  Co.  v.  Boston  &  M.  R.  Co.,  1  Gray  (Mass.)  263;    Rice  v. 
Hart,  118  Mass.  201. 

48  Jackson  v.  Railway  Co.,  23  Cal.  268  (but  see  Wilson  v.  Railroad  Co.,  94 
Cal.  166,  29  Pac.  861);    Southwestern  R.  Co.  v.  Felder,  46  Ga.  433;    Rome  R. 
Co.  v.  Sullivan,  14  Ga.  277,   282;   Porter  v.  Railroad  Co.,  20  111.  407;   Richards 
v.  Railroad  Co.,  Id.  404;    Chicago  &  A.  R.   Co.  v.  Scott,  42  111.   132;    Mer- 
chants' Dispatch  Transp.  Co.  v.  Hallock,  64  111.  284;    Rothschild  v.  Railroad 
Co.,  69  111.  164;    Bansemer  v.  Railway  Co.,  25  Ind.  434;    Cincinnati  &  A.  L. 
R.  Co.  v.  McCool,  26  Ind.  140;    Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Nash,  43 
Ind.  423,  426;    Mohr  v.  Railroad  Co.,  40  Iowa,  579;    Francis  v.  Railroad  Co., 
25  Iowa,  60;    Independence  Mills  Co.  v.  Burlington,  C.  R.  &  N.  Ry.  Co.,  72 
Iowa,  535,  34  N.  W.  320;    Norway  Plains  Co.  v.  Boston  &  M.  R.  Co.,  1  Gray 
(Mass.)  263;    Rice  v.  Hart,   118  Mass.  201;    Holtzclaw  v.   Duff,  27   Mo.   392; 
Gashweiler  v.  Railway  Co.,  83  Mo.  112;    Rankin  v.  Railroad  Co.,  55  Mo.  167; 
Buddy  v.  Railway  Co.,  20  Mo.  App.  206;    Piudell  v.  Railway  Co.,  34  Mo.  App. 
675,  683;    Neal  v.  Railroad  Co.,  53  N.  C.  482;    Morris  &  E.  R.  Co.  v.  Ayres, 
121)  N.  J.  Law,  393;    McCarty  v.  Railroad  Co.,  30  Pa.  St.  247;    Shenk  v.  Pro- 
peller Co.,  60  Pa.  St.  109;    Hipp  v.  Railway  Co.,  50  S.  C.  129,  27  S.  E.  623. 

49  Independence  Mills  Co.  v.  Burlington,  C.  R.  &  N.  Ry.  Co.,  72  Iowa.  535, 
34  N.  W.  320;  East  Tennessee,  V.  &  G.  R.  Co.  v.  Hunt,  15  Lea  (Tenu.)  201. 


B 


10'J)  DELIVERY    TO    CONSIGNEE.  289 


Baggage. 

In  the  case  of  baggage  the  passenger  is  entitled  to  a  reasonable 
length  of  time  after  its  arrival  in  which  to  remove  it,  and  during 
this  interval  the  liability  of  the  carrier  as  an  insurer  continues.50 
The  decisions  are  by  no  means  unanimous  in  determining  the  length 
of  time  that  may  be  called  reasonable  in  this  connection,  but  it 
may  be  safely  stated  that  it  is  generally  held  to  be  much  less  than 
that  allowed  for  the  removal  of  freight,51  and  in  several  cases  where 
the  passenger  and  baggage  arrived  at  night  it  was  held  an  unrea- 
sonable delay  to  postpone  the  removal  of  the  baggage  until  the  fol- 
lowing morning.52  If  delay  occurs  by  reason  of  the  fault  of  the 
carrier,  the  latter's  liability  is  not,  of  course,  permitted  to  be  ter- 
minated thereby.53  And,  in  any  event,  the  carrier  must  use  ordi- 
nary care  to  protect  the  baggage,  and  is  liable,  even  after  the  lapse 
of  a  reasonable  time,  as  a  warehouseman.5* 

so  Ouimit  v.  Henshaw,  35  Vt.  604;  Hoeger  v.  Railway  Co.,  63  Wis.  100, 
23  X.  W.  435;  Pennsylvania  Co.  v.  Liveright,  14  Ind.  App.  318,  41  N.  E.  350; 
Hurwitz  v.  Packet  Co.  (City  Ct.  N.  Y.)  56  N.  Y.  Supp.  379;  Patscheider  v. 
Railway  Co.,  3  Exch.  Div.  153. 

si  Chicago  &  A.  R.  Co.  v.  Addizoat,  17  111.  App.  632;  Patscheider  v.  Rail- 
way Co.,  3  Exch.  Div.  153. 

52  Jacobs  v.  Tutt,  33  Fed.  412;   Louisville,  C.  &  L.  R.  Co.  v.  Mahan,  8  Bush 
(Ky.)  184;    Roth  v.  Railroad  Co.,  34  N.  Y.  548;    Ross  v.  Railroad  Co.,  4  Mo. 
App.   583;    Graves  v.   Railroad  Co.,  29  App.   Div.  591,   51  N.  Y.   Supp.   636; 
Kansas  City,  Ft.  S.  &  M.  Ry.  Co.  v.  McGahey,  63  Ark.  344,  38  S.  W.  659. 
Arrival  on  Sunday,  notwithstanding  a  statute  prohibiting  travel  on  that  day, 
will,  not  excuse  delay.    Jones  v.  Transportation  Co.,  50  Barb.   (N.  Y.)   193; 
Hoeger  v.  Railway  Co.,  63  Wis.  100,  23  N.  W.  435;    Van  Horn  v.  Kermit,  4  E. 
D.  Smith  (N.  Y.)  453;    Burnell  v.  Railroad  Co.,  45  N.  Y.  184;    Holdridge  v. 
Railroad  Co.,  56  Barb.  (X.  Y.)  191. 

53  Dininny  v.  Railroad  Co.,  49  X.  Y.  546;    Kansas  City,  Ft.  S.  &  G.  R.  Co. 
v.  Morrison,  34  Kan.  502,  9  Pac.  225;    Prickett  v.  Xew  Orleans  Anchor  Line, 
13  Mo.  App.  436. 

5-t  Burnell  v.  Railroad  Co.,  45  X.  Y.  184;  Mattison  v.  Railroad  Co.,  57  N. 
Y.  r.r.l';  Fairfax  v.  Railroad  Co.,  67  X.  Y.  11;  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Fairclough,  52  111.  106;  Bartholomew  v.  Railroad  Co.,  53  111.  227;  Mote  v. 
Railroad  Co.,  27  Iowa,  22;  Rome  R.  R.  v.  Wimberly,  75  Ga.  316;  Kansas 
City,  Ft.  S.  &  M.  R.  Co.  v.  Patten,  3  Kan.  App.  338,  45  Pac.  108.  As  to  what 
is  a  proper  place  to  store  baggage,  see  Hoeger  v.  Railway  Co.,  63  Wis.  100, 
23  X.  W.  435;  St.  Louis  &  C.  R.  Co.  v.  Hardway,  17  111.  App.  321. 
BAR.XEG.— 19 


290  CAERIERS    OF   GOODS.  (Ch.    6 

Since  the  baggage,  in  the  ordinary  course  of  transportation,  ar- 
rives at  the  same  time  as  the  passenger,  no  notice  of  its  arrival  is 
held  to  be  necessary. 

SAME— DELIVERY  TO  CONNECTING  CARRIER. 

110.  The  initial  carrier  is  not  liable  for  losses  occurring 
after  the  goods  have  been  delivered  to  a  connect- 
ing carrier,  unless  he  has  undertaken  by  special 
contract  to  convey  the  goods  to  their  destination. 

So  far  as  the  common  law  is  concerned,  the  relations  and  obliga- 
tions existing  between  the  initial  carrier  and  the  connecting  car- 
rier, as  to  the  reception  and  delivery  of  the  goods,  are  the  same 
as  those  existing  between  the  carrier  and  the  individual  shipper.1 

Who  is  a  Connecting  Carrier. 

A  connecting  carrier  is  one  whose  line  forms  one  of  the  links 
in  the  chain  of  transportation  between  the  point  of  reception  and 
destination.  The  connecting  carrier  may  be  the  agent  of  either 
the  first  carrier,  where  the  contract  of  carriage  is  to  deliver  at  the 
destination,  or  the  agent  of  the  shipper,  where  the  contract  is  to 
deliver  to  the  next  carrier.2 

The  Delivery. 

Where,  under  the  circumstances,  or  by  virtue  of  the  contract,  the 
carrier  is  obligated  to  carry  safely  only  to  the  end  of  his  own  line, 
his  liability  as  an  insurer  is  not  terminated  until  a  complete  deliv- 
ery has  been  made  to  the  connecting  carrier.  This  additional  obli- 
gation is  assumed  by  the  reception  of  the  goods  billed  to  a  point 
remote  from  the  initial  line.3  To  constitute  a  delivery  of  this  na- 

§  110.     i  ShelbyviUe  R.  Co.  v.  Railroad  Co.,  82  Ky.  541. 

2  Nanson  v.  Jacob,  12  Mo.  App.  125,  127;  Western  &  A.  R.  Co.  v.  Expo- 
sition Cotton  Mills,  81  Ga.  522,  7  S.  E.  916.  But  see  Missouri  Pac.  Ry.  Co. 
v.  Wichita  Wholesale  Grocery  Co.,  55  Kan.  525,  40  Pac.  899;  Union  Pac.  Ry. 
Co.  v.  Vincent  (Neb.)  78  N.  W.  457;  St  Louis  S.  W.  Ry.  Co.  v.  Elgin  Con- 
densed Milk  Co.,  74  111.  App.  619. 

a  Myrick  v.  Railroad  Co.,  107  TJ.  S.  102,  1  Sup.  Ct.  425;  Hoffman  v.  Rail- 
way Co.  (Kan.  App.)  56  Pac.  331;  American  Roofing  Co.  v.  Memphis  &  C. 
Packet  Co.,  5  Ohio  N.  P.  146;  Fremont,  E.  &  M.  V.  R.  Co.  v.  Waters,  50  Neb. 
592,  70  N.  W.  225;  Hoffman  v.  Railroad  Co.,  85  Md.  391,  37  Atl.  214.  Ship- 


DELIVERY    TO    CONNECTING    CARRIER.  231> 

ture,  the  act  must  be  so  complete  as  to  impose  on  the  connecting 
line  the  liability  of  an  insuring  carrier.4  This  is  in  accordance 
with  prevailing  custom,  and  imposes  no  hardship.  When  the  ship- 
per surrenders  possession  and  control  of  his  goods,  it  is  but  right 
that  the  responsibility  for  their  safety  should  be  definitely  placed, 
and  continued  until  they  arrive  at  their  destination. 

Th  rough  Transportat  ion — Liab  ility  for. 

The  common  carrier  is  not  obligated  to  transport  goods  beyond 
the  terminus  of  its  own  line,  or  to  contract  for  such  further  trans- 
portation.5 But  it  may,  by  express  contract,  enlarge  its  liability, 
and  even  become  an  insurer  of  the  goods  during  the  entire  course 
of  their  journey,  and  while  passing  over  the  lines  of  connecting  car- 
riers.6 In  such  cases  the  latter  become  agents  of  the  initial  car- 
ping directions  must  be  delivered.  Bosworth  v.  Railway  Co.,  30  C.  C.  A.  541, 
87  Fed.  72.  If  the  goods  are  forwarded  by  a  different  carrier,  contrary  to  the 
shipper's  orders,  the  initial  carrier  is  liable  for  any  loss  sustained.  Isaacson 
v.  Raiload  Co.,  94  N.  Y.  278;  Johnson  v.  Railroad  Co.,  33  N.  Y.  610;  Georgia 
R.  Co.  v.  Cole,  68  Ga.  623.  The  carrier  undertaking  to  forward  from  the- 
terruinus  of  his  own  line  must  transmit  all  special  instructions  or  become  lia- 
ble for  resulting  loss.  Little  Miami  R.  Co.  v.  Washburn,  22  Ohio  St.  324; 
Dana  v.  Railroad  Co.,  50  How.  Prac.  (N.  Y.)  428.  A  carrier  acting  as  for- 
warding agent  for  the  owner  of  goods,  in  transmitting  directions  to  subsequent 
carriers,  is  liable  only  for  want  of  reasonable  diligence  and  care.  Northern 
R.  Co.  v.  Railroad  Co.,  6  Allen  (Mass.)  254. 

<  Wehmann  v.  Railway  Co.,  58  Minn.  22,  59  N.  W.  546.  A  mere  notifica- 
tion to  the  succeeding  carrier  to  take  the  goods,  which  he  does  not  do,  is 
not  a  delivery.  Goold  v.  Chapin,  20  N.  Y.  259.  See,  also,  Condon  v.  Railroad 
Co.,  55  Mich.  218,  21  N.  W.  321;  Lawrence  v.  Railroad  Co.,  15  Minn.  390 
(Gil.  313);  Wood  v.  Railway  Co.,  27  Wis.  541;  Conkey  v.  Railway  Co.,  31 
Wis.  619.  The  fact  that  a  part  of  the  goods  were  taken  from  the  initial  car- 
rier, and  the  rest  of  the  goods  were  pointed  out,  and  ready  to  be  taken,  does 
not  necessarily  make  a  constructive  delivery  of  the  whole.  Gass  v.  Railroad 
Co.,  99  Mass.  220.  Where  there  are  no  public  means  of  transportation  beyond 
terminus  of  initial  carrier's  line,  he  may  properly  deliver  to  warehouseman  or 
wharfinger.  Hermann  v.  Goodrich,  21  Wis.  543. 

5  Berg  v.  Railroad  Co.,  30  Kan.  561,  2  Pac.  639;  Cincinnati,  N.  O.  &  T. 
P.  Ry.  Co.  v.  X.  K.  Fairbanks  &  Co.,  33  C.  C.  A.  611,  90  Fed.  467. 

eBurtis  v.  Railroad  Co.,  24  X.  Y.  269,  272;  Root  v.  Railroad  Co.,  45  N. 
Y.  524,  532;  Quimby  v.  Vanderbilt,  17  X.  Y.  306;  Hill  Mfg.  Co.  v.  Boston) 
&  L.  R.  Corp..  104  Mass.  122;  Gray  v.  Jackson,  51  X.  H.  9;  Phillips  v. 
Railroad  Co..  78  X.  C.  204:  Railroad  Co.  v.  Pratt,  22  Wall.  123;  Woodward' 
v.  Railroad  Co.,  1  Biss.  403,  Fed.  Cas.  Xo.  18,006;  Atchison,  T.  &  S.  F.  Ry. 


292  CARRIERS   OF   GOODS.  (Ch.  6 

rier,  for  whose  default  it  is  liable.  Such  a  contract,  however,  will 
not  be  inferred  from  ambiguous  agreements  or  doubtful  circum- 
stances. It  must  be  supported  by  clear  and  satisfactory  evidence.7 
It  is  not  essential  that  it  be  framed  in  express  words.  The  ex- 
tended liability  may  be  raised  by  implication  from  strong  circum- 
stances or  special  words  in  the  bill  of  lading  or  receipt.8  The  fol- 
lowing circumstances,  in  the  courts  following  the  general  rule  that 
the  carrier  is  prima  facie  liable  for  losses  on  its  own  line,  are  evi- 
dence, but  not  conclusive,  of  a  through  contract:9  The  use  of  the 
words  "to  forward,"  or  "to  be  forwarded,"  in  the  carrier's  receipt;10 
a  receipt  or  bill  of  lading  which  purports  to  be  a  through  con- 
tract;11 the  giving  of  a  through  rate;12  the  prepayment  of  freight 

Co.  v.  Grant,  6  Tex.  Civ.  App.  674,  26  S.  W.  286;  Central  Railroad  &  Bank- 
ing Co.  v.  Georgia  Fruit  &  Vegetable  Exchange,  91  Ga.  389,  17  S.  E.  904; 
Benett  v.  Steamboat  Co.,  6  C.  B.  775.  But  see  dicta  per  contra  in  Hood  v. 
Railroad  Co.,  22  Conn.  502;  Converse  v.  Transportation  Co.,  33  Conn.  166; 
Naugatuck  R.  Co.  v.  Waterbury  Button  Co.,  24  Conn.  468;  Elmore  v.  Rail- 
road Co.,  23  Conn.  457.  As  to  liability  for  delay,  see  International  &  G.  N. 
Ry.  Co.  v.  Anderson,  3  Tex.  Civ.  App.  8,  21  S.  W.  691. 

7  Myrick  v.  Railroad  Co.,  107  U.  S.  102,  1  Sup.  Ct.  425.  Making  through 
rate  will  not  make  carrier  liable  for  acts  of  connecting  carrier.  Gulf,  W. 
T.  &  P.  Ry.  Co.  v.  Griffith  (Tex.  Civ.  App.)  24  S.  W.  362. 

s  Berg  v.  Steamship  Co.,  5  Daly  (N.  Y.)  394;  Robinson  v.  Transportation 
Co.,  45  Iowa,  470;  Piedmont  Mfg.  Co.  v.  Columbia  &  G.  R.  Co.,  19  S.  C.  353; 
Illinois  Cent.  R.  Co.  v.  Kerr,  68  Miss.  14,  8  South.  330;  Candee  v.  Railroad 
Co.,  21  Wis.  582;  International  &  G.  N.  Ry.  Co.  v.  Tisdale,  74  Tex.  8,  11  S. 
W.  900;  Railroad  Co.  v.  Androscoggin  Mills,  22  Wall.  594.  And  see  Camden 
&  A.  R.  Co.  v.  Forsyth,  61  Pa.  St.  81. 

a  Root  v.  Railroad  Co.,  45  N.  Y.  524,  532;  Hill  Mfg.  Co.  v.  Boston  &  L.  R. 
Corp.,  104  Mass.  122;  Camden  &  A.  R.  Co.  v.  Forsyth,  61  Pa.  St.  81;  Pied- 
mont Mfg.  Co.  v.  Columbia  &  G.  R.  Co.,  19  S.  C.  353;  Woodward  v.  Railroad 
Co.,  1  Biss.  403,  Fed.  Cas.  No.  18,006. 

10  Reed  v.  Express  Co.,  48  N.  Y.  462;  Mercantile  Mut.  Ins.  Co.  v.  Chase, 
1  E.  D.  Smith  (N.  Y.)  115;  Wilcox  v.  Parmelee,  3  Sandf.  (N.  Y.)  610;  Schroe- 
der  v.  Railroad  Co.,  5  Duer  (N.  Y.)  55;  Buckland  v.  Express  Co.,  97  Mass.  124; 
Nashua  Lock  Co.  v.  Worcester  &  N.  R.  Co.,  48  N.  H.  339;  Cutts  v.  Braiii- 
erd,  42  Vt.  566;  East  Tennessee  &  V.  R.  Co.  v.  Rogers,  6  Heisk.  (Tenn.) 
143;  St.  Louis,  K.  C.  &  N.  Ry.  Co.  v.  Piper,  13  Kan.  376;  Coif  ax  Moun- 
tain Fruit  Co.  v.  Southern  Pac.  Co.,  118  Cal.  648,  50  Pac.  775,  40  Lawy. 
Rep.  Ann.  78. 

nHelliwell  v.   Railway  Co.,   7  Fed.  68;    Richardson  v.   The   Charles   P. 


12  See  note  12  on  following  page. 


§    110)  DELIVERY    TO    CONNECTING    CARRIER.  293 

for  the  entire  distance;13  the  carrier's  holding  out  to  convey  over 
the  entire  distance;14  or  an  agreement  that  the  goods  be  carried 
through  in  a  particular  car.15  In  the  states  following  the  English 
rule,  these  circumstances  are  conclusive  of  a  through  contract.16 
In  the  large  majority  of  our  states  the  carrier  does  not  assume  this 

Chouteau,  37  Fed.  532;  Harp  v.  The  Grand  Era,  1  Woods,  184,  Fed.  Cas. 
No.  6,084;  Myrick  v.  Railroad  Co.,  9  Biss.  44,  Fed.  Cas.  No.  10,001;  Houston 
&  T.  C.  R.  Co.  v.  Park,  1  White  &  W.  Civ.  Cas.  Ct.  App.  §  332;  Texas  & 
P.  R.  Co.  v.  Parrish,  Id.  §  942;  Loomis  v.  Railway  Co.,  17  Mo.  App.  340; 
Moore  v.  Henry,  18  Mo.  App.  35;  Wiggins  Ferry  Co.  v.  Chicago  &  A.  R. 
Co.,  73  Mo.  389. 

12  Weed  v.  Railroad  Co.,  19  Wend.  (N.  Y.)  534;  Berg  v.  Steamship  Co., 
5  Daly  (N.  Y.)  394;  Clyde  v.  Hubbard,  88  Pa.  St.  358;  Candee  v.  Railroad 
Co.,  21  Wis.  589;  Aiken  v.  Railway  Co.,  68  Iowa.  363,  27  N.  W.  281;  Rail- 
road Co.  v.  Androscoggin  Mills,  22  Wall.  594.  But  see  McCarthy  v.  Rail- 
road Co.,  9  Mo.  App.  159;  East  Tennessee  &  G.  R.  Co.  v.  Montgomery,  44 
Ga.  278. 

is  Berg  v.  Steamship  Co.,  5  Daly  (N.  Y.)  394;  Candee  v.  Railroad  Co.,  21 
Wis.  589;  Weed  v.  Railroad  Co.,  19  Wend.  (N.  Y.)  534;  Piedmont  Mfg. 
Co.  v.  Columbia  &  G.  R.  Co.,  19  S.  C.  353;  Illinois  Cent.  R.  Co.  v.  Kerr,  68 
Miss.  14,  8  South.  330. 

i*  Lawson,  Bailrn.  §  103;  Root  v.  Railroad  Co.,  45  N.  Y.  524;  Collender 
v.  Dinsmore,  55  N.  Y.  200;  Toledo,  P.  &  W.  Ry.  Co.  v.  Merriman,  52  111. 
123;  Hill  Mfg.  Co.  v.  Boston  &  L.  R.  Corp.,  104  Mass.  122;  Robinson  v. 
Transportation  Co.,  45  Iowa,  470;  Harris  v.  Railroad  Co.  (R.  I.)  16  Atl.  512; 
St.  John  v.  Express  Co.,  1  Woods,  612,  Fed.  Cas.  No.  12,228;  Chicago,  St. 
L.  &  P.  R.  Co.  v.  Wolcott,  141  Ind.  267,  39  N.  E.  451;  Eckles  v.  Railway 
Co.,  72  Mo.  App.  296. 

i  s  International  &  G.  N.  Ry.  Co.  v.  Tisdale,  74  Tex.  8,  11  S.  W.  900. 

is  Hutch.  Carr.  (2d  Ed.)  §  152;  Ohio  &  M.  R.  Co.  v.  Emrich,  24  111.  App. 
245;  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Jaggerman,  115  111.  407,  4  N.  E.  641; 
Illinois  Cent.  R.  Co.  v.  Copeland,  24  111.  332;  Same  v.  Johnson,  34  111.  389; 
Same  v.  Frankenberg,  54  111.  88;  Central  Railroad  &  Banking  Co.  v.  Georgia 
Fruit  &  Vegetable  Exchange,  91  Ga.  389,  17  S.  E.  904;  Adams  Exp.  Co. 
v.  Wilson,  81  111.  339;  Weed  v.  Railroad  Co.,  19  Wend.  (N.  Y.)  534;  Hansen 
v.  Railroad  Co.,  73  Wis.  346,  41  N.  W.  529;  Angle  v.  Railroad  Co.,  9  Iowa, 
487;  Mulligan  v.  Railway  Co.,  36  Iowa,  181;  Pereira  v.  Railroad  Co.,  66 
Cal.  92,  4  Pac.  988;  Halliday  v.  Railway  Co.,  74  Mo.  159;  Atlanta  &  W.  P. 
R.  Co.  v.  Texas  Grate  Co.,  81  Ga.  602,  9  S.  E.  600;  Baltimore  &  O.  R.  Co. 
v.  Campbell,  36  Ohio  St.  647;  Carter  v.  Peck,  4  Sneed  (Tenn.)  203;  Western 
&  A.  R.  Co.  v.  McElwee,  6  Heisk.  (Tenn.)  208;  East  Tennessee  &  V.  R.  Co. 
v.  Rogers,  Id.  143;  Louisville  &  N.  R.  Co.  v.  Campbell,  7  Heisk.  (Tenn.)  253, 


294  CARRIERS    OF   GOODS.  (Ch.    6 

extended  liability  by  the  mere  acceptance  of  goods  billed  to  a  point 
beyond  its  own  terminals.17 

English  Rule. 

The  English  rule,  as  laid  down  in  Muschamp  v.  Lancaster  &  P. 
-J.  Ry.  Co.,18  holds  that  when  the  carrier  receives  goods  billed  to  a 
particular  place,  and  fails  to  limit  his  responsibility  by  a  positive 
agreement,  he  impliedly  undertakes  to  carry  them  to  the  point  of 
•destination,  although  it  may  lie  beyond  the  limits  within  which 

17  Elmore  v.  Railroad  Co.,  23  Conn.  457;  Hood  v.  Railroad  Co.,  22  Conn. 
502;  Naugatuck  R.  Co.  v.  Waterbury  Button  Co.,  24  Conn.  468;  Converse 
v.  Transportation  Co.,  33  Conn.  166;  Savannah,  F.  &  W.  Ry.  Co.  v.  Harris, 
26  Fla.  148,  7  South.  544;  Pittsburgh,  C.  &  St  L.  Ry.  Co.  v.  Morton,  61 
Ind.  539;  Hill  v.  Railroad  Co.,  60  Iowa,  196,  14  N.  W.  249;  Perkins  v. 
Railroad  Co.,  47  Me.  573;  Skinner  v.  Hall,  60  Me.  477;  Inhabitants  of 
Plantation  No.  4  v.  Hall,  61  Me.  517;  Baltimore  &  O.  R.  Co.  v.  Schumacher, 
:29  Md.  168,  176;  Nutting  v.  Railroad  Co.,  1  Gray  (Mass.)  502;  Darling  v. 
Railroad  Corp.,  11  Allen  (Mass.)  295;  Burroughs  v.  Railroad  Co.,  100  Mass. 
26;  Lowell  Wire-Fence  Co.  v.  Sargent,  8  Allen  (Mass.)  189;  Pendergast 
v.  Express  Co.,  101  Mass.  120;  Pratt  v.  Railroad  Co.,  102  Mass.  557;  Craw- 
ford v.  Railroad  Ass'n,  51  Miss.  222;  McMillan  v.  Railroad  Co.,  16  Mich. 
79;  Detroit  &  B.  C.  R.  Co.  v.  McKenzie,  43  Mich.  609,  5  N.  W.  1031;  Rick- 
erson  Roller-Mill  Co.  v.  Grand  Rapids  &  I.  R.  Co.,  67  Mich.  110,  34  N.  W. 
269;  Irish  v.  Railway  Co.,  19  Minn.  376  (Gil.  323);  Lawrence  v.  Railroad 
Co.,  15  Minn.  390  (Gil.  313);  Grover  &  Baker  Sewing-Mach.  Co.  v.  Missouri 
Pac.  Ry.  Co.,  70  Mo.  672;  Van  Santvoord  v.  St.  John,  6  Hill  (N.  Y.)  157; 
Lamb  v.  Transportation  Co.,  46  N.  Y.  271;  Condict  v.  Railway  Co.,  54  X. 
Y.  500;  Rawson  v.  Holland,  59  N.  Y.  611;  Reed  v.  Express  Co.,  48  N.  Y. 
462;  Phillips  v.  Railroad  Co.,  78  N.  C.  294;  Lindley  v.  Railroad,  88  N.  C. 
547;  Knott  v.  Railroad  Co.,  98  N.  C.  73,  3  S.  E.  735;  Carnden  &  A.  R.  Co. 
v.  Forsyth,  61  Pa.  St  81;  American  Exp.  Co.  v.  Second  Nat.  Bank,  69 
Pa.  St.  394;  Pennsylvania  Cent.  R.  Co.  v.  Schwarzenberger,  45  Pa.  St.  408; 
Clyde  v.  Hubbard,  88  Pa.  St.  358;  Knight  v.  Railroad  Co.,  13  R.  I.  572; 
Harris  v.  Railway  Co.,  15  R.  I.  371,  5  Atl.  305;  Piedmont  Mfg.  Co.  v. 
Columbia  &  G.  R.  Co.,  19  S.  C.  353  (but  see  Kyle  v.  Railroad  Co.,  10  Rich. 
Law  [S.  C.]  382);  McConnell  v.  Railroad  Co.,  86  Va.  248,  9  S.  E.  1006; 
Myrick  v.  Railroad  Co.,  107  U.  S.  102,  1  Sup.  Ct.  425;  Stewart  Y.  Railroad 
Co.,  1  McCrary,  312,  3  Fed.  768;  Michigan  Cent.  R.  Co.  v.  Mineral  Springs 
Mfg.  Co.,  16  Wall.  318;  Ogdenburg  &  L.  C.  R.  Co.  v.  Pratt.  22  Wall.  123; 
St.  Louis  Ins.  Co.  v.  St.  Louis,  V.,  T.  H.  &  I.  R.  Co.,  104  U.  S.  146;  Wichita 
Val.  Ry.  Co.  v.  Swenson  (Tex.  Civ.  App.)  25  S.  W.  47. 

i«8  Mees.  &  W.  421. 


§    110)  DELIVERY    TO   CONNECTING    CARRIER.  295 

he  professes  to  operate.19  This  rule  is  also  followed  in  some  Ameri- 
can courts.20  The  English  cases  go  so  far  as  to  hold  that  in  these 
circumstances  the  first  carrier  only  can  be  held  liable  for  a  loss 
occurring  on  connecting  lines.21 

Authority  of  Agents  to  Make  Through  Contracts. 

A  general  freight  agent  of  a  company  may  bind  his  principal  by 
a  contract  to  carry  beyond  the  limits  of  his  own  line,22  but  ordi- 
narily, and  in  the  absence  of  previous  dealings  raising  a  presump- 
tion of  authority,  a  station  agent  has  no  such  power.28 

Presumption  and  Burden  of  Proof  . 

As  the  shipper,  after  the  goods  have  passed  from  his  possession 
and  control,  has  no  means  of  proving  how  the  loss  occurred,  cer- 
tain presumptions  are  raised  in  his  favor.24  In  the  first  instance, 

i»  Watson  v.  Railway  Co.,  3  Eng.  Law  &  Eq.  497;  Mytton  v.  Railway 
Co.,  28  Law  J.  Exch.  385;  Coxon  v.  Railway  Co.,  5  Hurl.  &  N.  274;  Bristol 
&  E.  Ry.  Co.  v.  Collins,  Id.  969,  29  Law  J.  Exch.  41. 

20  Mobile  &  G.  R.  Co.  v.  Copeland,  63  Ala.  219;    Louisville  &  N.  R.  Co. 
v.  Meyer,  78  Ala.  597;    Falvey  v.  Railroad  Co.,  76  Ga.  597;   Rome  R.  Co.  v. 
Sullivan,  25  Ga.  228;    Mosher  v.  Express  Co.,  38  Ga.  37;    Southern  Exp. 
Co.  v.  Shea,  Id.  519;    Cohen  v.  Express  Co.,  45  Ga.  148;   Illinois  Cent.  R.  Co. 
v.  Copeland,  24  111.  332;    Illinois  Cent.  R.  Co.  v.  Johnson,  34  111.  389;    Illi- 
nois Cent.  R.   Co.  v.  Frankenberg,  54  111.  88;    Chicago  &  N.  W.  R.  Co.  v. 
People,  56  111.  365;    United  States  Exp.  Co.  v.  Haines,  67  111.  137;    Adams 
Exp.  Co.  v.  Wilson,  81  111.  339;    Erie  Ry.  Co.  v.  Wilcox,  84  111.  239;    Angle 
v.  Railroad  Co.,  9  Iowa,  487;    Mulligan  v.  Railway  Co.,  36  Iowa,  181;    Cin- 
cinnati, H.  &  D.   R.   Co.  v.  Spratt,  2  Duv.   (Ky.)  4;    Nashua  Lock  Co.   v. 
Worcester  &  N.  R.  Co.,  48  N.  H.  339;    Western  &  A.  R.  Co.  v.  McEhvee,  6 
Heisk.  (Tenn.)  208;    East  Tennessee  &  V.  R.  Co.  v.  Rogers,  Id.  143;    Louis- 
ville &  N.  R.  Co.  v.  Campbell,  7  Heisk.  (Tenn.)  253;   Carter  v.  Peck,  4  Sneed 
<Tenn.)  203;   East  Tennessee  &  G.  R.  Co.  v.  Nelson,  1  Cold.  (Tenn.)  272. 

21  Collins  v.  Railway  Co.,  11  Exch.  790;    Barter  v.  Wheeler,  49  N.  H.  9; 
Chicago  &  N.  W.  Ry.  Co.  v.  Northern  Line  Packet  Co.,  70  111.  217;    Chesa- 
peake &  O.  R.  Co.  v.  Radbourne,  52  111.  App.  203;    Southern  Exp.  Co.  v. 
Hess,  53  Ala.  19;   Coxon  v.  Railway  Co.,  5  Hurl.  &  N.  274;    Mytton  v.  Rail- 
way Co.,  4  Hurl.  &  N.  615. 

22  Grover  &  Baker  Sewing-Mach.  Co.  v.  Missouri  Pac.  Ry.  Co.,   70  Mo. 
072;    White  v.  Railway  Co.,  19  Mo.  App.  400. 

23  Burroughs  v.  Railroad  Co.,   100  Mass.  26;    Turner  v.  Railroad  Co.,  20 
Mo.  App.  632;    Grover  &  Baker  Sewing-Mach.  Co.  v.  Missouri  Pac.  Ry.  Co., 
70  Mo.  672;   White  v.  Railway  Co.,  19  Mo.  App.  400. 

24  Laughlin  v.  Railway  Co.,  28  Wis.  204. 


296  CARRIERS    OF    GOODS.  (Ch.   6. 

it  is  essential  only  that  the  plaintiff  show  a  delivery  in  good  order 
to  the  first  carrier,  and  either  nondelivery  or  delivery  in  a  dam- 
aged condition  to  the  consignee.25  In  an  action  against  the  first 
carrier  the  latter  may  show  that  the  goods  were  delivered  to  the 
next  carrier  in  good  order,  or  in  the  same  condition  in  which  he 
received  them.26  A  prima  facie  case  is  made  out  against  the  last 
carrier  by  showing  that  the  goods  were  delivered  to  the  initial  car- 
rier in  good  condition;  the  presumption  being,  in  the  absence  of 
proof  to  the  contrary,27  that  this  condition  continued,  and  that 
the  injury  occurred  on  the  last  line.28 

EXCUSES  FOR  NONDELIVERY. 

111.  Failure  to  deliver  goods  according  to  the  contract  of 
carriage  is  excused 

(a)  When  a  superior  adverse  claim  to  the  goods  is  asserted. 

(b)  When  there  is  a  stoppage  in  transitu  by  the  consignor. 

(c)  When  the  delivery  is  prevented  by  an  excepted  peril. 

25  Smith  v.  Railroad  Co.,  43  Barb.  (N.  Y.)  225;  Brintnall  v.  Railroad  Co., 
32  Vt.  665;  Missouri  Pac.  Ry.  Co.  v.  Breeding  (Tex.  App.)  16  S.  W.  184; 
Goodman  v.  Navigation  Co.,  22  Or.  14,  28  Pac.  898. 

ze  Laughlin  v.  Railway  Co.,  28  Wis.  204;  Smith  v.  Railroad  Co.,  43  Barb. 
(N.  Y.)  225;  Brintnall  v.  Railroad  Co.,  32  Vt.  665;  Gulf,  C.  &  S.  F.  Ry.  Co. 
v.  Malone  (Tex.  Civ.  App.)  25  S.  W.  1077. 

27  Gulf,   C.  &   S.   F.   R.   Co.   v.   Malone   (Tex.   Civ.   App.)  25  S.   W.   1077; 
Texas  &  P.  Ry.  Co.  v.  Barnhart,  5  Tex.  Civ.  App.  601,  23  S.  W.  801;    Louis- 
ville &  N.  R.  Co.  v.  Jones,  100  Ala.  263,  14  South.  114;    Forrester  v.  Rail- 
road Co.,  92  Ga.   699,  19  S.   E.  811;    Georgia  Railroad   &  Banking  Co.   v. 
Forrester,  96  Ga.  428,  23  S.  E.  416;    Newport  News  &  M.  V.  R.  Co.  v.  Men- 
dell  (Ky.)  34  S.  W. '1081;    Farmington  Mercantile  Co.  v.  Chicago,  B.  &  Q. 
R.  Co.,  166  Mass.  154,  44  N.  E.  131;    Louisville  &  N.  R.  Co.  v.  Tennessee 
Brewing  Co.,  96  Tenn.  677,  36  S.  W.  392;    Morganton  Mfg.  Co.  v.  Ohio  R. 
&  C.  Ry.  Co.,  121  N.  C.  514,  28  S.  E.  474. 

28  Laughlin  v.  Railway  Co.,  28  Wis.  204;    Mobile  &  O.  R.  Co.  v.  Tupelo 
Furniture  Mfg.  Co.,  67  Miss.  35,  7  South.  279;    Texas  &  P.  Ry.  Co.  v.  Barn- 
hart,  5  Tex.  Civ.  App.  601,  23  S.  W.  801;    Texas  &  P.  R.  Co.  v.  Adams,  78- 
Tex.  372,  14  S.  W.  66G;   Lin  v.  Railroad,  10  Mo.  App.  125;    Central  Railroad 
&  Banking  Co.  v.  Bayer,  91  Ga.  115,  16  S.  E.  953;   International  &  G.  N.  Ry, 
Co.  v.  Foltz,  3  Tex.  Civ.  App.  644,  22  S.  W.  541;    Faison  v.  Railway  Co., 
69  Miss.  569,  13  South.  37.     But  see  International  &  G.  N.  Ry.  Co.  v.  Wolf, 
3  Tex.  Civ.  App.  383,  22  S.  W.  187;    Western  Ry.  Co.  v.  Harwell,  97  Ala.. 
341,  11  South.  781. 


§    113)  STOPPAGE    IN    TRANSITU. 


SAME— SUPERIOR  ADVERSE  CLAIM. 

112.  The  carrier  acts  at  his  peril  in  refusing  to  recognize 

a  superior  adverse  claim,  by  whomsoever  made. 

Ordinarily,  the  carrier  is  bound  by  the  presumption  that  the 
person  who  delivers  the  goods  for  carriage  is  fully  representative 
of  the  owner,  and  his  title  is  not  open  to  dispute  by  the  consignor. 
His  directions  as  to  delivery  are  authoritative,  and  must  be  fol- 
lowed.1 But  this  presumption  holds  good  only  as  to  the  voluntary 
action  of  the  carrier.  If  the  assertion  of  an  adverse  superior  title 
is  made  by  a  third  party,  it  does  not  apply.2  If  the  goods  have 
been  demanded  by  and  delivered  to  a  third  party,  the  carrier  may 
always  defend  such  delivery  by  showing  the  superior  title  in  the 
third  party.3  Moreover,  the  carrier  cannot  be  held  liable  if  he  has 
delivered  the  goods  according  to  contract  before  claim  is  made  by 
the  real  owner.4 

SAME— STOPPAGE  IN  TRANSITU. 

113.  Nondelivery  to  the  consignee  is  always  excused  by  a 

stoppage  in  transitu  by  the  consignor.1 

The  right  of  stoppage  in  transitu  exists  whenever  an  unpaid  ven- 
dor learns  of  the  insolvency  of  the  consignee  before  the  goods 

§§  111-112.  i  Sheridan  v.  New  Quay  Co.,  4  C.  B.  (X.  S.)  618;  Lacloucb 
v.  Towle,  3  Esp.  115. 

2  Wells  v.  Express  Co.,  55  Wis.  23,  11  N.  W.  537,  and  12  N.  W.  441;  West- 
ern Transp.  Co.  v.  Barber,  56  N.  Y.  544;  Bates  v.  Stanton,  1  Duer  (X.  Y.)  79; 
Floyd  v.  Bovard,  6  Watts  &  S.  (Pa.)  75;  King  v.  Richards,  6  Whart.  (Pa.) 
418;  The  Idaho,  93  U.  S.  575;  Rosenfield  v.  Express  Co.,  1  Woods,  131,  Fed. 
Cas.  Xo.  12,060;  Great  Western  Ry.  Co.  v.  Crouch,  3  Hurl.  &  N.  183;  Bur- 
oughes  v.  Bayne,  5  Hurl.  &  X.  296;  Taylor  v.  Plumer,  3  Maule  &  S.  562. 

s  Sheridan  v.  Xew  Quay  Co.,  4  C.  B.  (N.  S.)  618;  American  Exp.  Co.  v. 
Greenhalgh,  80  111.  68;  Young  v.  Railway  Co.,  SO  Ala.  100;  Wolfe  v.  Rail- 
way Co.,  97  Mo.  473,  11  S.  W.  49;  Hardinan  v.  Willcock,  9  Bing.  382;  Biddle 
v.  Bond,  6  Best  &  S.  225;  Cheesman  v.  Exall,  6  Exch.  341;  Dixon  v.  Yates, 
5  Barn.  &  Adol.  340. 

4  Sheridan  v.  Xew  Quay  Co.,  4  C.  B.  (X.  S.)  618. 

§  113.  i  Hutch.  Carr.  (2d  Ed.)  §  409;  McFetridge  v.  Piper,  40  Iowa,  627; 
Reynolds  v.  Railroad  Co.,  43  X.  H.  5SO;  Newliall  v.  Vargas,  13  Me.  93. 


^298  CARRIERS   OB'    GOODS.  (Ch.   6 

have  been  delivered,2  but  the  carrier  is  not  bound  to  inform  him- 
self as  to  such  insolvency  before  delivering  the  goods  to  the  con- 
signor, on  his  demand.3  To  excuse  the  carrier  for  nondelivery  to  the 
consignee,  the  notice  of  stoppage  in  transit  must  be  made  while 
the  goods  are  actually  in  transit.4  Transit,  within  this  rule,  is 
deemed  to  continue  until  the  buyer,  or  his  agent  in  that  behalf, 
takes  delivery  of  the  goods  from  the  carrier  either  before  or  after 
their  arrival  at  the  appointed  destination,0  or  after  the  arrival  of 
the  goods  at  their  appointed  destination  the  carrier  attorns  to 
Ihe  buyer,  and  continues  in  possession  as  bailee  for  the  buyer,6  or 
the  carrier  wrongfully  refuses  to  deliver  the  goods  to  the  buyer  or 
his  agent  in  that  behalf.7 

2  Rowley  v.  Bigelow,  12  Pick.  (Mass.)  307,  313;    Durgy  Cement  &  Umber 
Co.  v.  O'Brien,  123  Mass.  12;    Seymour  v.  Newton,   105  Mass.  272;    Muller 
v.  Pondir,  55  N.  Y.  325;    Gossler  v.  Scliepeler,  5  Daly  (N.  Y.)  476;    Gwyn  v. 
Railroad  Co.,  85  N.  C.  429;   Benedict  v.  Schaettle,  12  Ohio  St.  515;   Reynolds 
v.  Railroad  Co.,  43  N.  H.  580;   Loeb  v.  Peters,  63  Ala.  243;    Secomb  v.  Nutt, 

14  B.  Mon.  (Ky.)  324;   Millard  v.  Webster,  54  Conn.  415,  8  Atl.  470.     Where 
the  right  does  not  exist,  see  Lester  v.  Railroad  Co.,  73  Hun,  398,  26  N.  Y. 
Supp.  206. 

3  Hale,  Bailm.  &  Carr.  p.  480;   The  Vidette,  34  Fed.  396;    The  E.  H.  Pray, 
27  Fed.  474;    Allen  v.  Railroad  Co.,  79  Me.  327,  9  Atl.  895;    Bloomingdale 
v.  Railroad  Co.,  6  Lea  (Tenn.)  616;   The  Tigress,  Brown  &  L.  45. 

*  Schotsmans  v.  Railroad  Co.,  2  Ch.  App.  332;  Rowley  v.  Bigelow,  12 
Pick.  (Mass.)  307. 

6  Seymour  v.  Newton,  105  Mass.  272;  Kingman  v.  Denison,  84  Mich.  608, 
48  N.  W.  26;  White  v.  Mitchell,  38  Mich.  390;  Jenks  v.  Fulmer,  160  Pa. 
St.  527,  28  Atl.  841;  Grive  v.  Dunham,  60  Iowa,  108,  14  N.  W.  130;  Symns 
v.  Schotten,  35  Kan.  310,  10  Pac.  828;  Wheeling  &  L.  E.  Ry.  Co.  v.  Koontz, 

15  Ohio  Cir.  Ct.  R.  288;    Whitehead  v.  Anderson,  9  Mees.  &  W.  518;    Craw- 
.shay  v.  Eades,  1  Barn.  &  C.  182;    Bolton  v.  Railway  Co.,  L.  R.  1  C.  P.  431; 
James  v.  Griffin,  2  Mees.  &  W.  623. 

e  McFetridge  v.  Piper,  40  Iowa,  627;  Langstaff  v.  Stix,  64  Miss.  171,  1 
South.  97;  Williams  v.  Hodges,  113  N.  C.  36,  18  S.  E.  83;  James  v.  Griffin. 
2  Mees.  &  W.  623;  Ex  parte  Cooper,  11  Ch.  Div.  68. 

T  Bird  v.  Brown,  4  Exch.  786. 


§114)  EXCEPTED    PERILS.  299 


SAME— EXCEPTED  PERILS. 

114.  The  carrier  is  not  responsible  for  nondelivery  of  goods 
occasioned  by  perils  excepted  by  the  common  law. 

The  perils  which  exempt  a  common  carrier  from  liability  for 
loss  of  goods  intrusted  to  him  have  already  been  discussed.1  If 
goods  are  lost  by  reason  of  circumstances  which  relieve  the  car- 
rier of  liability  therefor,  it  follows  that  there  can  be  no  liability 
for  nondelivery. 

§  114.    i  See  ante,  pp.  225-232. 


300  OCCUPATION    AND    USE    OF    LAND    AND    WATER.  (Ch.  7 

CHAPTER  VH. 

OCCUPATION  AND  USE  OF  LAND  AND  WATER. 

115.  Duties— General  Rule. 

116.  Lateral  Support. 

117.  Dangerous  Premises. 

118.  Visitors,  Licensees,  and  Trespassers. 

119.  Hidden  Dangers,  Excavations,  Etc. 

120.  Private  Grounds. 

121.  Landlord  and  Tenant. 

122.  Contract  to  Repair. 

123.  Premises  Defective  at  Time  of  Renting. 

124.  Liability  to  Tenant. 

125.  Safe  Access  to  Rented  Property. 

126.  Water  Courses. 

127.  Construction  and  Maintenance  of  Dains. 

128.  Rule  in  United  States. 

129.  Obstruction  of  Navigable  Streams. 

DUTIES— GENERAL  RULE. 

115.  The  breach  of  duties  attached  to  the  ownership  or 
occupation  of  land  does  not  involve  principles  dif- 
ferent from  the  ordinary  rules  of  negligence  as  ap- 
plied to  the  use  of  chattels. 

If  A.  agree  to  convey  land  to  B.,  the  latter  undertaking  to  erect 
a  house  thereon,  and  the  workmen  of  B.,  in  preparing  the  foundation, 
undermine  and  injure  C.'s  adjoining  house,  the  negligence,  if  any, 
is  that  of  B.,  who  is  alone  responsible,  although  the  title  to  the 
land  still  remains  in  A.1  In  general,  one  may  rightfully  occupy 
his  real  estate,  and  enjoy  and  use  it  in  any  way  that  suits  his 
pleasure  or  whim,  provided  he  does  not  transgress  the  rule,  "Sic 
utere  tuo  ut  alienum  non  laedas."  And  even  regarding  this  rule  it 
is  to  be  observed  that  he  is  not  to  be  literally  restricted  thereby, 
for  there  are  many  acts  which  he  may  rightfully  perform  on  his 

§  115.  i  Earle  v.  Hall,  2  Mete.  (Mass.)  353.  See,  also,  Painter  v.  Mayor, 
etc.,  46  Pa.  St.  213;  Hilliard  v.  Richardson,  3  Gray  (Mass.)  349;  Prairie  State 
Loan  &  Trust  Co.  v.  Doig,  70  111.  52. 


§    116)  LATICRAL    SUPPORT.  30 1 

own  land,  although  they  will  certainly  result  in  injury  to  his  neigh- 
bor.2 All  that  the  law  requires  of  the  landholder  is  that  he  exer- 
cise ordinary  prudence  and  skill,  to  the  end  that  he  may  not  do 
unnecessary  harm  to  his  neighbor,  as  in  putting  down  the  founda- 
tions of  his  house.3 

LATERAL   SUPPORT. 

116.  A  person  may  lawfully  sink  the  foundation  of  his 
house  on  his  own  land,  and  adjacent  to  that  of  anoth- 
er, below  the  foundation  of  his  neighbor's,  and  is 
not  liable  for  any  damage  resulting  to  his  neigh- 
bor's house,  provided  he  has  used  due  care  and  dili- 
gence to  prevent  injury  thereto. 

In  the  absence  of  negligence  and  unskillfuness,  a  person  is  not 
answerable  in  damage  for  the  exercise  of  a  right.1  Following  this 
principle,  the  New  York  courts  hold  that  one  may  rightfully  exca- 
vate upon  his  own  land  to  any  depth,  provided  he  uses  due  care 
and  diligence  not  to  do  unnecessary  harm  to  his  neighbor's  prop- 
erty.2 The  Massachusetts  courts,  on  the  contrary,  hold  that  a  per- 
son has  the  right  to  have  his  soil,  independent  of  any  artificial  im- 
provements, remain  in  its  natural  condition,  and  that  any  one  who 
interferes  with  that  right  is  a  wrongdoer,  independently  of  any 
question  of  negligence.  In  the  case  of  Gilmore  v.  Driscoll,3  Gray, 
C.  J.,  says:  "The  right  of  an  owner  of  land  to  the  support  of  the 
land  adjoining  is  jure  naturae,  like  the  right  in  a  flowing  stream. 
Every  owner  of  land  is  entitled,  as  against  his  neighbor,  to  have 
the  earth  stand  and  the  water  flow  in  its  natural  condition.  *  *  * 
But  in  the  case  of  land  wrhich  is  fixed  in  its  place,  each  owner  has 
the  absolute  right  to  have  land  remain  in  its  natural  condition, 

2  See  post.  pp.  310.  311. 

3  Paiiton  v.  Holland,  17  Johns.   (N.  Y.)  92.     See,  also,  Radcliff's  Ex'rs  v. 
Brooklyn,  4  N.  Y.  195;    Phelps  v.  Nowlen,  72  N.  Y.  39. 

§  11G.  i  Pantoii  v.  Holland,  17  Johns.  (N.  Y.)  92;  Hemsworth  v.  Gushing, 
115  Mich.  92,  72  N.  W.  1108;  Spohn  v.  Dives,  174  Pa.  St  474,  34  Atl.  192. 

2  Panton  v.  Holland,  17  Johns.   (X.  Y.)  92;    Bailey  v.   Gray,   53  S.   C.  503, 
31  S.  E.  354;    Krish  v.  Ford  (Ky.)  43  S..W.  237;    Lapp  v.  Guttenkunst  (Ky.) 
44  S.  W.  964;   Obert  v.  Dunn,  140  Mo.  476,  41  S.  W.  901. 

3  122  Mass.  199. 


302  OCCUPATION   AND   USE   OF   LAND   AND    WATER.  (Ch.  7 

unaffected  by  any  act  of  his  neighbor;  and,  if  the  neighbor  digs 
upon  or  improves  his  own  land  so  as  to  injure  this  right,  may  main- 
tain an  action  against  him,  without  proof  of  negligence.  But  this 
right  of  property  is  only  in  the  land  in  its  natural  condition,  and 
the  damages  in  such  an  action  are  limited  to  the  injury  of  the  land 
itself,  and  do  not  include  any  injury  to  buildings  or  improvements 
thereon.  While  each  owner  may  build  upon  and  improve  his  own 
estate,  at  his  pleasure,  provided  he  does  not  infringe  upon  the 
natural  right  of  his  neighbor,  no  one  can,  by  his  own  act,  enlarge 
the  liability  of  his  neighbor  for  an  interference  with  this  natural 
right.  If  a  man  is  not  content  to  enjoy  his  land  in  its  natural 
condition,  but  wishes  to  build  upon  or  improve  it,  he  must  either 
make  an  agreement  with  his  neighbor,  or  dig  his  foundations  so 
deep,  or  take  such  other  precautions,  as  to  insure  the  stability  of 
his  buildings  or  improvements,  whatever  excavations  the  neighbor 
may  afterwards  make  upon  his  own  land  in  the  exercise  of  his  right." 

DANGEROUS  PREMISES. 

117.  It  is  the  general  duty  of  the  owner  or  occupant  of 
lands  to  so  occupy  and  use  them  that  they  shall 
not  become  a  source  of  danger  to  those  who  are 
rightfully  upon  or  about  the  premises. 

To  this  end  it  is  the  duty  of  the  owner  to  use  reasonable  care 
that  structures  placed  upon  the  land  are  properly  constructed,  and 
so  maintained  that  they  shall  not  endanger  passers-by  upon  the 
street,  or  others  rightfully  about  the  premises.  Thus,  if  the  owner 
of  a  building  which  has  been  partially  destroyed  by  fire  permits  the 
walls  to  remain  standing,  without  taking  proper  precautions  to  pre- 
vent their  falling  into  the  adjacent  street,  he  will  be  liable  for  in- 
jury to  a  passer-by  caused  by  such  neglect.1  And  the  fact  that  the 

§  117.  i  Church  of  the  Ascension  v.  Buckhart,  3  Hill  (N.  Y.)  193.  See, 
also,  Seabrook  v.  Hecker,  2  Rob.  (N.  Y.)  291;  Schell  v.  Bank,  14  Minn.  43 
(Gil.  34);  Glover  v.  Mersman,  4  Mo.  App.  90;  Schwartz  v.  Gilmore,  45  111. 
455.  The  owner  of  a  building  veneered  with  brick,  the  brick  portion  of  the 
wall  of  which  fell  through  the  failure  of  the  builder  to  anchor  the  same  to 
the  sheathing  of  the  wall,  as  was  proper  and  customary,  was  not  liable  for 
injuries  occasioned  by  the  fall,  in  the  absence  of  evidence  that,  by  his  exer- 


§    117)  DANGEROUS    PREMISES.  303- 

walls  were,  at  the  time  of  the  accident,  in  the  charge  of  a  con- 
tractor, would  not  relieve  the  owner  of  liability.2  But,  to  charge 
the  owner  or  occupant  with  negligence,  the  defect  or  danger  must 
be  actually  known,  or  discoverable  in  the  exercise  of  ordinary  dili- 
gence.3 

Furthermore,  it  is  the  duty  of  the  owner  to  construct  his  build- 
ings so  that  natural  accumulations  of  ice  and  snow  upon  the  roof 
will  not  be  discharged  iji  a  manner  likely  to  harm  travelers  in  the 
street.4  So,  also,  if  a  spout  for  conveying  water  from  the  roof  is 
so  placed  as  to  discharge  upon  a  neighbor's  land,  to  his  injury; 5  or 
if  the  water  is  discharged  upon  the  sidewalk,  forming  ice,  by  reason 
of  which  a  traveler  is  injured.6  If  the  owner  of  a  building  per- 
mits to  be  hung  over  the  sidewalk  lamps,  signs,  or  other  heavy 
articles  likely  to  produce  injury  by  falling,  it  is  his  duty  to  use  at 
least  ordinary  care  to  see  that  they  are  securely  fastened  and  main- 
tained.7 

cising  ordinary  care  before  the  wall  fell,  he  might  have  discovered  the  de- 
fect therein.  Ryder  v.  Kinsey,  62  Minn.  85,  64  N.  W.  94.  But  see  Cork 
v.  Blossom,  162  Mass.  330,  38  N.  E.  495,  where  it  was  held  that  one  who 
erects  a  chimney  on  his  land  is  liable  to  an  adjoining  owner  for  injuries 
caused  by  its  fall,  when  it  is  not  the  result  of  inevitable  accident,  or  wrongful 
acts  of  third  parties. 

2  Sessengut  v.  Posey,  67  Ind.  408;  Knoop  v.  Alter,  47  La.  Ann.  570,  17  South, 
139. 

s  Metzger  v.  Schultz,  16  Ind.  App.  454,  43  N.  E.  886;  Ryder  v.  Kinsey, 
62  Minn.  85,  64  N.  W.  94.  But  cf.  Cork  v.  Blossom,  162  Mass.  330,  38  N.  E. 
495;  Glase  v.  City  of  Philadelphia,  169  Pa.  St.  488,  32  Atl.  600. 

4  Garland  v.  Towne,  55  N.  H.  55;  Wash  v.  Mead,  8  Hun  (N.  Y.)  387;  Ship- 
ley v.  Fifty  Associates,  101  Mass.  251. 

e  Reynolds  v.  Clarke,  2  Ld.  Rayni.  1399;  Bellows  v.  Sackett,  15  Barb.  (N, 
Y.)  96. 

e  Kirby  v.  Association,  14  Gray  (Mass.)  249;  Lumley  v.  Manufacturing  Co.r 
20  C.  C.  A.  1,  73  Fed.  767;  Thuringer  v.  Railroad  Co.,  82  Hun,  33,  31  N.  Y. 
Supp.  419;  Citron  v.  Bayley,  36  App.  Div.  130,  55  N.  Y.  Supp.  382. 

T  Tarry  v.  Ashton,  1  Q.  B.  Div.  314;  Salisbury  v.  Herchenroder,  106  Mass. 
458;  Detzur  v.  Brewing  Co.  (Mich.)  77  N.  W.  948. 


304  OCCUPATION    AND   USE    OF    LAND    AND    WATER.  (Ch.   7 


SAME— VISITORS,  LICENSEES,  AND  TRESPASSERS. 

118.  In  a  general  way,  the  duty  incumbent  upon  the  occu- 
pant of  premises  towards  those  coming  thereon  is 
proportioned  to  the  rightfulness  of  their  presence- 
Those  entering  by  invitation  are  entitled  to  a  higher 
degree  of  care  than  those  who  are  present  by  mere 
sufferance. 

Visitors  and  Licensees. 

In  considering  the  degree  of  care  which  it  is  the  duty  of  the  owner 
to  extend  to  those  coming  upon  his  land  or  premises,  regard  must 
be  had  to  the  character  of  the  party,  and  his  reasons  for  being  there. 
One  who  comes  into  the  store  of  a  merchant  by  invitation,  either 
express  or  implied,  is  entitled  to  greater  consideration  and  care  than 
one  who  enters  by  mere  sufferance  or  is  committing  a  trespass. 

It  is  the  duty  of  the  occupant  of  premises  to  use  ordinary  care 
to  maintain  them  in  a  reasonably  safe  condition  for  the  accommo- 
dation of  those  who  are  invited  there  for  the  purposes  of  business.1 
The  rule  is  equally  applicable  in  all  cases  where  the  visitor  is  in- 
duced to  come  upon  the  premises  for  purposes  beneficial  to  the  owner 
or  occupant.2  The  person  thus  induced  to  come  upon  the  premises 

§  118.  i  Coughtry  v.  Woolen  Co.,  .56  N.  Y.  124;  Bennett  v.  Railroad  Co., 
102  U.  S.  577;  Weston  v.  Railroad  Co.,  73  N.  Y.  595;  Carleton  v.  Steel  Co.,  99 
Mass.  216;  Homer  v.  Everett,  47  N.  Y.  Super.  Ct.  298;  Nave  v.  Flack,  90 
Ind.  205;  Pastene  v.  Adams,  49  Cal.  87;  Parker  v.  Barnard,  135  Mass.  116; 
Learoyd  v.  Godfrey,  138  Mass.  315;  Chapman  v.  Roth  well,  EL,  Bl.  &  El.  168. 
Guest  of  a  tenant,  Defiance  Water  Co.  v.  Olinger,  54  Ohio  St.  532,  44  N.  E. 
238;  Metzger  v.  Schultz,  16  Ind.  App.  454,  43  N.  E.  886;  Glase  v.  City  of  Phila- 
delphia, 169  Pa.  St.  488,  32  Atl.  600;  Barman  v.  Spencer  (Ind.  Sup.)  49  X.  E. 
9;  Anderson  &  Nelson  Distilling  Co.  v.  Hair  (Ky.)  44  S.  W.  658;  Doherty  v. 
McLean,  171  Mass.  399,  50  N.  E.  938;  Wilson  v.  Olano,  28  App.  Div.  44S,  51 
N.  Y.  Supp.  109;  Texas  Loan  Agency  v.  Fleming  (Tex.  Civ.  App.)  46  S.  W.  63. 
That  the  immediate  cause  was  the  act  of  a  trespasser  does  not  excuse  negli- 
gence of  defendant,  Colorado  Mortg.  &  Inv.  Co.  v.  Rees,  21  Colo.  Sup.  435, 
42  Par.  42. 

2  Currier  v.  Association,  135  Mass.  414;  Brown  v.  Society,  47  Me.  275; 
Camp  v.  Wood,  76  N.  Y.  92;  Baker  v.  Tibbetts,  162  Mass.  468,  39  N.  E.  350; 
Lepnick  v.  Gaddis,  72  Miss.  200,  16  South.  213. 


§    118)  VISITORS,   LICENSEES,  AND    TRESPASSERS.  305 

may  rightfully  assume  them  to  be  reasonably  safe,8  but  he  is  not 
excused  from  the  exercise  of  ordinary  care  on  his  part;  as  if  he 
should  proceed  along  a  dark  passageway,  and  fall  down  an  ordinary 
staircase,  when  common  prudence  would  have  dictated  that  he 
should  take -a  light.4 

Although  it  seems  to  be  generally  conceded  that  the  landowner 
does  not  owe  to  the  invited  guest  upon  his  premises  the  same  degree 
of  care  that  is  due  to  one  who  comes  there  for  purposes  of  business, 
it  is  not  clear  on  what  ground  the  distinction  rests,  or  just  how  far 
it  may  be  carried.  Shearman  and  Redfield  say:  "In  our  judgment, 
the  same  rule  should  be  applied  in  such  a  case  that  would  be  ap- 
plied if  the  property  were  personal  instead  of  real.  The  host  should 
always  be  held  responsible  to  the  guest  for  gross  negligence; 5  that 
is,  for  such  want  of  care  as  would  justify  a  suspicion  that  he  was 
indifferent  to  the  safety  of  his  guest."  8  A  bare  licensee  entering 
upon  the  premises  of  another  must  take  them  as  he  finds  them, 
and  cannot  complain  if  he  is  injured  by  reason  of  their  unfit  or  un- 
safe condition.7  Under  these  circumstances  the  owner  would  be 
liable  only  for  injuries  resulting  from  negligence  of  such  a  char- 
acter as  to  justify  the  conclusion  that  it  was  intentional  or  wan- 
ton. Thus,  where  workmen  had  been  excavating  sand  on  defend- 
ant's land,  and  had  left  an  overhanging  bank,  in  a  vacant  lot,  where 
children  sometimes  played,  and  the  bank  fell,  and  killed  an  infant, 
who  was  then  in  charge  of  a  sister,  it  was  held  that  no  recovery 

s  Francis  v.  Cockrell,  L.  R.  5  Q.  B.  184.  Application  of  rule  to  wife  of 
prospective  purchaser.  Davis  v.  Ferris,  29  App.  Div.  623,  53  N.  Y.  Supp.  571. 
But  he  cannot  assume  premises  to  be  safe  for  an  unreasonable  or  unintended 
use.  Edwards  v.  Railroad  Co.,  98  N.  Y.  245.  Barbed  wire  stretched  across 
a  way  not  public,  but  customarily  traveled.  Morrow  v.  Sweeney,  10  Ind.  App. 
626,  38  N.  E.  187. 

•t  Wilkinson  v.  Fairrie,  1  Hurl.  &  C.  633;  Zoebisch  v.  Tarbell,  10  Allen 
(Mass.)  385;  otherwise,  if  there  be  special  inducement,  Sweeny  v.  Railroad 
Co.,  10  Allen  (Mass.)  368. 

s  As  in  case  of  gratuitous  passengers  on  railroads.  Philadelphia  &  R.  R. 
Co.  v.  Derby,  14  How.  468. 

e  Shear.  &  R.  Neg.  (4th  Ed.)  §  706. 

7  Sweeny  v.  Railroad  Co.,  10  Allen  (Mass.)  368;  Zoebisch  v.  Tarbell,  Id. 
385;  Gillis  v.  Railroad  Co.,  59  Pa.  St.  129;  Frost  v.  Railroad  Co.,  10  Allen 
(Mass.)  387;  Pierce  v.  Whitcomb,  48  Vt.  127;  Lake  Erie  &  W.  R.  Co.  v. 
BAR.XEG— 20 


306  OCCUPATION    AND    USE    OF    LAND    AND    WATER.  (Ch.  V 

could  be  had,  as  defendant  was  not  bound  to  keep  the  premises  in 
safe  condition  for  licensees  or  trespassers.8  If  it  were  known  to  the 
owner  that  children  were  accustomed  to  play  upon  the  land,  it 
would  be  his  duty  to  use  ordinary  care  to  see  that  it  was  reason- 
ably safe,  or,  at  least,  that  it  contained  no  dangers  which  a  child 
would  not  appreciate, — as  lumber  so  carelessly  piled  that  it  was  liable 
to  fall.9  This  seeming  exception,  in  the  case  of  children,  to  the 
rule  that  the  landowner  owes  no  duty  to  the  bare  licensee  or  tres- 
passer on  his  premises,  has  this  apparent  limitation:  The  liability 
of  the  landowner  extends  only  to  those  cases  where  dangerous  ma- 
chinery, structures,  and  contrivances  of  a  nature  calculated  to  at- 
tract and  entertain  young  children  have  been  left  unguarded,  and 
caused  injury  to  infants  so  young  as  to  be  non  sui  juris?  An  illus- 
tration of  this  is  found  in  the  so-called  "Turntable  Cases."  10  But, 

Maus  (Ind.  App.)  51  N.  E.  735;  Flanagan  v.  Asphalt  Co.,  37  App.  Div.  476. 
56  N.  Y.  Supp.  18;  Brehmer  v.  Lynian  (Vt.)  42  Atl.  613;  Smith  v.  Day,  86 
Fed.  62;  Blackstone  v.  Foundry  Co.,  170  Mass.  321,  49  N.  E.  635;  Fitzpatrick 
v.  Manufacturing  Co.  (N.  J.  Sup.)  39  Atl.  675;  Kinney  v.  Onsted,  113  Mich. 
96,  71  N.  W.  482.  And  where,  under  these  circumstances,  the  injury  is  caused 
by  the  direct  act  of  a  stranger,  a  fortiori  there  is  no  liability.  Mahoney  v. 
Libbey,  123  Mass.  20.  But  see  Clarkin  v.  Biwabik-Bessemer  Co.,  65  Minn. 
483,  67  N.  W.  1020,  where  defendant  was  held  liable  to  the  licensee,  injured 
by  an  explosion  of  dynamite. 

s  Ratte  v.  Dawson,  50  Minn.  450,  52  N.  W.  965;  Grindley  v.  McKechnie, 
163  Mass.  494,  40  N.  E.  764;  Richards  v.  Connell,  45  Neb.  517,  G3  N.  W. 
915.  See,  also,  Knight  v.  Abert,  6  Pa.  St.  472;  Galligan  v.  Manufacturing 
Co.,  143  Mass.  527,  10  N.  E.  171;  Hargreaves  v.  Deacon,  25  Mich.  1;  In  re 
Demarest,  86  Fed.  803;  Kayser  v.  Lindell  (Minn.)  75  N.  W.  1038. 

a  Bransom's  Adm'r  v.  Labrot,  81  Ky.  638.  See,  also,  Beehler  v.  Daniels, 
19  R.  I.  49,  31  Atl.  582.  And  generally,  as  to  injuries  to  trespassers,  see 
Pelton  v.  Schmidt,  104  Mich.  345,  62  N.  W.  552;  Gulf,  C.  &  S.  F.  Ry.  Co. 
v.  Cunningham  (Tex.  Civ.  App.)  30  S.  W.  367;  Walsh  v.  Railroad  Co.,  145 
N.  Y.  301,  39  N.  E.  1068;  Elliott  v.  Carlson,  54  111.  App.  470;  Biggs  v.  Barb- 
Wire  Co.  (Kan.  Sup.)  56  Pac.  4;  Ritz  v.  City  of  Wheeling  (W.  Va.)  31  S. 
E.  993,  43  Lawy.  Rep.  Ann.  148. 

10  Keffe  v.  Railway  Co.,  21  Minn.  207,  approved  in  Union  Pac.  Ry.  Co. 
v.  McDonald,  152  U.  S.  262,  14  Sup.  Ct  619;  Kolsti  v.  Railway  Co.,  32  Minn. 
133,  19  N.  W.  655;  Doyle  v.  Railway  Co.,  42  Minn.  79,  43  N.  W.  787;  O'Mal- 
ley  v.  Railway  Co.,  43  Minn.  294,  45  N.  W.  440;  City  of  Pekin  v.  McMahon, 
154  111.  141,  39  N.  E.  484;  Siddall  v.  Jansen,  168  111.  43,  48  X.  E.  191,  39 
Lawy.  Rep.  Ann.  112;  Price  v.  Water  Co.,  58  Kan.  551,  50  Pac.  450.  But 


§118)  VISITORS,  LICENSEES,  AND   TRESPASSERS.  307 

even  as  to  children  non  sui  juris,  not  more  than  ordinary  or  rea- 
sonable care  is  required,11  and  the  question  of  adequate  care  in  the 
particular  case  must  be  for  the  jury.1* 

Trespassers. 

If  the  occupant  of  premises  owes  no  duty  to  the  licensee,  still 
less  can  a  trespasser  be  heard  to  complain  of  the  negligence  of 
the  landowner  upon  whose  premises  he  has  unlawfully  entered.  And 
so,  where  a  statute  required  railroads  to  block  ah"  frogs  upon  their 
tracks,  and  plaintiff,  a  trespasser  in  the  yards  of  defendant  com- 
pany, was  injured  by  reason  of  the  failure  to  comply  with  such  stat- 
ute, he  was  not  allowed  to  recover;  the  court  saying  that  the  stat- 
ute was  passed  for  the  protection  of  those  rightfully  upon  the  prem- 
ises in  the  discharge  of  their  duty,  and  not  for  the  protection  of 
trespassers.18 

a  very  strong  line  of  decisions  take  the  opposite  view  in  this  class  of  cases. 
Walsh  v.  Railroad  Co.,  145  N.  Y.  301,  39  N.  E.  1068;  Frost  v.  Railroad  Co., 
64  N.  H.  220,  9  Atl.  790;  Daniels  v.  Railroad  Co.,  154  Mass.  349,  28  N.  E. 
283;  Stendal  v.  Boyd  (Minn.)  75  N.  W.  735;  Delaware,  L.  &  W.  R.  Co.  v. 
Reich  (N.  J.  Err.  &  App.)  40  Atl.  682;  Peters  v.  Bowman,  115  Cal.  345,  47 
Pac.  113,  598;  Dobbins  v.  Railway  Co.  (Tex.  Sup.)  41  S.  W.  62. 

11  Kolsti  v.  Railway  Co.,  32  Minn.  133,  19  N.  W.  655;    Keffe  v.  Railroad 
Co.,  21  Minn.  207;    O'Malley  v.  Railway  Co.,  43  Minn.  294,  45  N.  W.  440; 
City  of  Pekin  v.  McMahon,  154  111.  141,  39  N.  E.  484;    Moran  v.  Car  Co.,  134 
Mo.  641,  36  S.  W.  659.     Ties  insecurely  piled.     Missouri,  K.  &  T.  Ry.  Co. 
of  Texas  v.  Edwards,  90  Tex.  65,  36  S.  W.  430. 

12  Doyle  v.  Railway  Co.,  42  Minn.  79,  43  N.  W.  787.     So  held  where  plain- 
tiffs, as  bare  licensees,  remained  in  an  abandoned  camp  where  dynamite 
was  stored  by  defendants,  and  which  was  exploded  by  heat,  and  injured 
plaintiffs.     It  was  for  the  jury  to  determine  whether  plaintiffs  had  been 
afforded  a  reasonable  time  to  vacate  after  they  knew  of  the  storage  of 
the  dynamite.    Clarkin  v.  Biwabik-Bessemer  Co.,  65  Minn.  483,  67  N.  W.  1020. 

is  Akers  v.  Railway  Co.,  58  Minn.  540,  60  N.  W.  669.  See,  also,  Beehler 
v.  Daniels,  19  R.  I.  49,  31  Atl.  582.  And  generally,  as  to  injuries  to  tres- 
passers, see  Pelton  v.  Schmidt,  104  Mich.  345,  62  N.  W.  552;  Gulf,  C.  &  S. 
F.  Ry.  Co.  v.  Cunningham  (Tex.  Civ.  App.)  30  S.  W.  367;  Walsh  v.  Rail- 
road Co.,  145  N.  Y.  301,  39  N.  E.  1068;  Elliott  v.  Carlson,  54  I1L  App.  470; 
Berlin  Mills  Co.  v.  Croteau,  32  C.  C.  A.  126,  88  Fed.  860;  Reeves  v.  French 
<Ky.)  45  S.  W.  771;  Anderson  v.  Railway  Co.,  19  Wash.  340,  53  Pac.  345. 


308  OCCUPATION    AND    USE    OF    LAND    AND   WATER.  (Cll.   7 


SAME— HIDDEN  DANGERS,  EXCAVATIONS,  ETC. 

119.  The  occupant  of  premises  is  liable  for  injuries  inflicted 
by  reason  of  maintaining  contrivances  or  conditions 
involving  hidden  dangers,  and  likely  to  do  harm, 
although  the  person  injured  is  unlawfully  or  -wrong- 
fully on  the  premises. 

From  a  very  early  date  in  this  country,  the  landholder  has  been 
liable  for  injuries  caused  by  traps  or  other  harmful  devices,  placed 
out  of  doors  for  the  purpose  of  doing  harm  to  the  person  or  prop- 
erty of  those  who  came  unbidden  upon  the  premises.1  In  England, 
however,  until  the  early  part  of  the  present  century,  the  courts  up- 
held the  placing  of  spring  guns  and  other  mankilling  devices  in  cer- 
tain circumstances,2  even  where  the  land  was  not  inclosed.3  Al- 
though certain  early  decisions  in  this  country  apparently  sustained 
the  right  of  the  householder  to  set  spring  guns  inside  his  buildings 
for  the  purpose  of  injuring  burglars,4  the  courts  have  not  com- 
mitted themselves  unreservedly  to  the  doctrine,  and  there  can  be 
no  question  that  an  innocent  person,  although  a  technical  trespasser, 
if  injured  by  such  devices,  could  recover.6 

Although  spring  guns,  traps,  and  other  similar  barbaric  devices 
now  exist  only  in  history,  the  courts  still  find  analogous  conditions 
in  concealed  dangers  to  which  the  simile  of  "trap"  is  applied,  and 
it  is  now  almost  universally  held  that  a  person  is  liable  for  injuries 
inflicted  by  reason  of  maintaining  a  contrivance  or  condition  in- 
volving a  hidden  danger,  likely  to  do  harm,  even  though  the  person 
injured  is  wrongfully  or  unlawfully  upon  the  premises.  And  al- 
though a  person  may  make  such  excavations  as  he  sees  fit  upon  his 
own  land,  and  is,  in  general,  not  bound  to  place  guards  about  them,6 

§  119.     i  Johnson  v.  Patterson,  14  Conn.  1;    State  v.  Moore,  31  Conn.  479. 

2  Ilott  v.  Wilkes,  3  Barn.  &  Aid.  304.  But  it  would  seein  that  the  owner 
was  obliged  to  give  proper  notice  that  the  premises  were  thus  protected. 
Bird  v.  Holbrook,  4  Bing.  628.  But  see  Jordin  v.  Crump,  8  Mees.  &  W.  782. 

s  Jordin  v.  Crump,  8  Mees.  &  W.  782.  The  practice  was  forbidden  by 
Act  May  28,  1827  (St.  7  &  8  Geo.  IV.  c.  18). 

*  Gray  v.  Combs,  7  J.  J.  Marsh.  (Ky.)  478. 

6  State  v.  Moore,  31  Conn.  479. 

e  Kohn  v.  Lovett,  44  Ga.  251. 


§119)  HIDDEN    DANGERS,  EXCAVATIONS,  ETC.  .  309 

yet  in  this  respect  he  must  be  governed  entirely  by  the  circum- 
stances of  the  case.  If  the  point  of  excavation  is  remote  from  the 
highway  or  any  public  or  customary  path,  he  owes  no  duty  to 
strangers  to  fence  or  otherwise  protect  the  hole.7  But  if  the  hole 
is  so  located  that,  in  the  ordinary  course  of  events,  there  is  a  likeli- 
hood that  a  passer-by  may  fall  into  it,  he  leaves  it  unguarded  at 
his  peril,8  and  the  fact  that  the  injured  person  digressed  slightly 
from  the  highway  or  path,  and  became  even  a  technical  trespasser, 
will  not  necessarily  excuse  the  landowner.9  It  is  evident  that  no 
specific .  rule  can  be  laid  down  for  determining  the  exact  distance 
from  a  highway  or  traveled  path  at  which  the  landowner  may,  with 
impunity,  dig,  and  leave  unguarded,  a  hole.  The  distance  must 
necessarily  vary  with  the  circumstances  of  each  case.10  Each  case 
must  be  determined  by  its  peculiar  incidents,  having  due  regard  for 
the  general  rule  that,  in  taking  care  to  use  his  property  so  as  not 
to  injure  his  neighbor,  one  is  not  bound  to  look  beyond  the  natural 
and  probable  consequences  of  the  act  he  is  about  to  perform.11 

Substantially  the  same  rules  have  always  been  applicable  in  cases 
of  injury  to  domestic  animals  by  reason  of  the  negligence  or  wan- 
ton carelessness  of  landowners,  it  being  the  common-law  duty  of 
the  owner  to  fence  them  in,  and  not  that  of  the  landowner  to  fence 
them  out.12  And  so  it  was  held  in  a  very  early  case,  where  de- 

T  Knight  v.  Abert,  6  Pa.  St.  472;  Kelley  v.  City  of  Columbus,  41  Ohio 
St.  263  (30  feet  from  sidewalk);  Hardcastle  v.  Railroad  Co.,  4  Hurl.  &  X. 
67  (20  feet  from  highway);  Gillespie  v.  McGowan,  100  Pa.  St.  144  (well, 
80  feet  from  highway);  Turner  v.  Thomas,  71  Mo.  596. 

s  Barnes'  Adnrr  v.  Ward,  9  C.  B.  392;  Haughey  v.  Hart,  62  Iowa,  9G,  17 
X.  W.  189;  Graves  v.  Thomas,  95  Ind.  361;  Yale  v.  Bliss,  50  Barb.  (X.  Y.) 
358;  Houston  v.  Traphagen,  47  X.  J.  Law,  23;  Hutson  v.  King,  95  Ga.  271, 
22  S.  E.  615;  Binny  v.  Carney  (Sup.)  46  X.  Y.  Supp.  307;  Hadley  v.  Taylor, 
L.  R.  1  C.  P.  53. 

9  Yale  v.  Bliss.  50  Barb.  (X.  Y.)  318;  Hector  Min.  Co.  v.  Robertson,  22 
Colo.  491,  45  Pac.  406;  Lowe  v.  Salt  Lake  City,  13  Utah,  91,  44  Pac.  1050; 
Butz  v.  Cavanaugh,  137  Mo.  503,  38  S.  W.  1104. 

101  Thomp.  Xeg.  (1st  Ed.)  p.  299;  Young  v.  Harvey,  16  Ind.  314.  Cf. 
Durham  v.  Musselnian,  2  Blackf.  (Ind.)  96.  And  see  post,  p.  310. 

11  Yale  v.  Bliss,  50  Barb.  (X.  Y.)  358;    Kinchlow  v.  Elevator  Co.,  57  Kan. 
374,  46  Pac.  703;    Drennan  v.  Grady.  167  Mass.  415,  45  X.  E.  741;    Rosen- 
baum  v.  Shoffner,  98  Tenn.  624,  40  S.  W.  1086. 

12  Mason  v.  Keeling,  12  Mod..  332,  1  Ld.   Rayrn.  606;    Bush  v.  Brainard, 
1  Cow.  (X.  Y.)  78. 


310  OCCUPATION    AND   USE    OF    LAND    AND    WATER.  (Ch.  7 

fendant  had  dug  a  pit  in  a  common,  into  which  the  plaintiff's  mare 
fell  and  was  killed,  that  the  plaintiff  could  not  recover.13  So,  also, 
where  plaintiff's  cow  strayed  into  defendant's  wood,  and  drank 
maple  sap  which  had  been  left  exposed,  and  died,14  and  where  de- 
fendant kept  pickling  brine  exposed  near  the  highway,  and  plain- 
tiff's oxen  were  killed  by  reason  of  drinking  it,15  the  defendants 
were  not  held  liable.  But  where  defendant  placed  traps,  baited  with 
meat,  near  the  highway,  without  notice,  but  on  his  own  premises, 
for  the  purpose  of  catching  his  neighbors'  dogs,  and  plaintiff's  dog, 
attracted  by  the  meat,  was  killed,  defendant  was  held  liable.18 

SAME— PRIVATE  GROUNDS. 

120.  Where  one's  grounds  are  private,  secluded,  and  in  no 
way  open  to  the  public,  the  owner  is  under  no  ob- 
ligation to  maintain  them  with  a  view  to  the  safety 
of  those  who  come  upon  them  without  invitation, 
either  express  or  implied.1 

In  Hargreaves  v.  Deacon,2  referring  to  the  duty  of  the  landowner 
under  the  above  circumstances,  Graves,  J.,  says:  "On  private  prop- 
erty it  applies  less  generally,  and  only  to  those  who  have  a  legal 
right  to  be  there,  and  to  claim  the  care  of  the  occupant  for  their 
security,  while  on  the  premises,  against  negligence,  or  to  those 
who  are  directly  injured  by  some  positive  act  involving  more  than 
passive  negligence.  Cases  are  quite  numerous  in  which  the  same 
questions  have  arisen  which  arise  in  this  case,  and  we  have  found 
none  which  hold  that  an  accident  from  negligence,  on  private  prem- 
ises, can  be  made  the  ground  of  damages,  unless  the  party  injured 

is  Blyth  v.  Topham,  Cro.  Jac.  158,  1  Rolle,  Abr.  88. 

14  Bush  v.  Brainard,  1  Cow.  (X.  Y.)  78. 

IB  Hess  v.  Lupton,  7  Ohio,  216;  Aurora  Branch  R.  Co.  v.  Grimes,  13  I1L 
585. 

18  Townsend  v.  Wathen,  9  East,  277.  Cf.  Crowhurst  v.  Board,  4  Exch. 
Div.  5  (see  18  Alb.  Law  J.  514);  Firth  v.  Iron  Co.,  3  C.  P.  Div.  254. 

§  120.  i  Gautret  v.  Egerton,  L.  R.  2  C.  P.  371;  Stone  v.  Jackson,  16  O. 
B.  199;  Roulston  v.  Clark,  3  E.  D.  Smith  (N.  Y.)  366;  Zoebisch  v.  Tarbell, 
10  Allen  (Mass.)  385;  Frost  v.  Railway  Co.,  Id.  387;  Kohn  v.  Lovett,  44 
Ga.  251. 

2  25  Mich.  L 


§  121)  LANDLORD  AND  TENANT.  311 

has  been  induced  to  come  by  personal  invitation,  or  by  employment 
which  brings  him  there,  or  by  resorting  there  as  to  a  place  of  busi- 
ness or  of  general  resort,  held  out  as  open  to  customers  or  others 
whose  lawful  occasions  may  lead  them  to  visit  there.  We  have 
found  no  support  for  any  rule  which  would  protect  those  who  go 
where  they  are  not  invited,  but  merely  with  express  or  tacit  permis- 
sion, from  curiosity,  or  motives  of  private  convenience,  in  no  way 
connected  with  business  or  other  relations  with  the  occupant." 

LANDLOKD  AND  TENANT. 

121.  Primarily,  the  occupant,  and  not  the  owner,  of  leased 
premises  is  liable  to  third  persons  for  injuries  caused 
by  the  failure  to  keep  the  premises  in  repair.1  The 
liability  may,  however,  be  extended  to  the  landlord 

(a)  When  the  latter  has  made  a  contract  to  repair,  or 

(b)  Where  the  premises  were  defective  at  the  inception 

of  the  lease. 

From  a  very  early  date  it  has  been  established  by  the  common 
law  that  he  who  occupies,  and  not  the  landlord,  is  bound  to  pro- 
tect the  public  against  danger  or  injury  arising  from  any  defect 
in  the  condition  of  the  premises.2  Thus,  in  the  early  case  of  Cheet- 
ham  v.  Hampson  3  it  was  held  that  an  action  on  the  case  for  not 
repairing  fences,  to  the  injury  of  plaintiff,  could  be  maintained 

§  121.  i  Payne  v.  Rogers.  2  H.  Bl.  350;  O'Brien  v.  Cap  well,  59  Barb. 
(N.  Y.)  497;  Shindelbeck  v.  Moon  (Ohio  Sup.)  17  Am.  Law  Reg.  450;  Kastor 
v.  Newhouse,  4  E.  D.  Smith  (X.  Y.)  20;  Gridley  v.  City  of  Bloomington, 
68  111.  47;  Blunt  v.  Aikin,  15  Wend.  (N.  Y.)  522;  Szathmary  v.  Adams,  166 
Mass.  145,  44  N.  E.  124;  Simon-Reigel  Cigar  Co.  v.  Gordon-Burnham  Bat- 
tery Co.,  20  Misc.  Rep.  598,  46  N.  Y.  Supp.  416;  Gleason  v.  Boehm,  58  N.  J. 
Law,  475,  34  Atl.  886;  Reg.  v.  Watts,  1  Salk.  357;  Cheetham  v.  Hampson, 
4  Term  R.  318;  Russell  v.  Shenton,  3  Q.  B.  449;  Reg.  v.  Bucknall,  2  Ld. 
Raym.  804;  Brent  v.  Haddon,  3  Cro.  Jac.  555;  Coupland  v.  Hardingham, 
3  Camp.  398;  Tarry  v.  Ashton,  1  Q.  B.  Div.  314.  But  see  Trustees  of  Vil- 
lage of  Canandaigua  v.  Foster,  156  N.  Y.  354,  50  N.  E.  971;  Fox  v.  Buffalo 
Park,  21  App.  Div.  321,  47  N.  Y.  Supp.  78S. 

2  See  ante,  note  1. 

s  4  Term  R.  318. 


312  OCCUPATION    AND    USE    OF    LAND    AND    WATER.  (Ch.  7 

against  the  occupant  only,  and  not  against  the  owner  of  the  fee,  not 
in  possession.4 

SAME— CONTRACT  TO  REPAIR. 

122.  The  landlord  also  may  become  liable  to  the  public  for 
injuries  received  through  failure  to  repair,  if  he  has 
violated  his  express  contract  -with  his  tenant  in 
that  regard. 

When  the  landlord  has  entered  into  an  express  agreement  with 
the  tenant  to  keep  the  premises  in  repair,  he  will  be  liable  to  the 
public  for  injuries  caused  by  his  failure  to  do  so.1  And  this  even 
if  the  tenant  is  to  pay  for  the  omitted  repairs.2  And  so,  when 
workmen  repairing  a  hall  under  such  an  agreement,  negligently  left 
the  cellar  entrance  open  during  the  night,  and  plaintiff  fell  into  it, 
and  was  injured,  the  landlord  was  liable.3  But,  if  the  landlord  un- 
dertakes to  transmit  power  to  adjacent  buildings,  he  is  liable  for 
an  injury  to  an  employe*  of  the  tenant  by  neglecting  to  keep  the 
pulleys  and  shafting  in  safe  condition,  although  the  lease  required 
the  tenant  to  keep  the  shaft  in  repair.4  As  a  general  proposition, 

*  See  Ahern  v.  Steele,  115  N.  Y.  203,  22  N.  E.  193;    Sterger  v.  Van  Sicklen, 
132  N.  Y.  499,  30  N.  E.  987.     Lessor  of  railroad  is  not  liable  for  torts  of 
lessee.    Miller  v.  Railroad  Co.,  125  N.  Y.  118,  26  N.  E.  35.     Landlord  is  not 
liable  for  damage  caused  by  want  of  repair  of  ordinary  nature  to  privy 
vaults.     Pope  v.  Boyle,  98  Mo.  527,  11  S.  W.  1010.     And  generally,  see  City 
of  Chicago  v.  O'Brennan,  65  111.  160;    Gridley  v.  City  of  Bloomington,  68  111. 
47;    City  of  Lowell   v.   Spaulding,  4  Gush.   (Mass.)   277;    Brunswick-Balke- 
Collender  Co.  v.  Rees,  69  Wis.  442,  34  N.  W.  732;    Texas  Loan  Agency  v. 
Fleming  (Tex.  Sup.)  49  S.  W.  1039;    Metropolitan  Sav.  Bank  v.  Manion,  87 
Md.  68,  39  Atl.  90. 

§  122.  i  Benson  v.  Suarez,  43  Barb.  (N.  Y.)  408;  Payne  v.  Rogers,  2  H. 
Bl.  350;  Black  v.  Maitland,  11  App.  Div.  188,  42  N.  Y.  Supp.  653. 

2  Leslie  v.  Pounds,  4  Taunt.  649;  Nelson  v.  Brewery  Co.,  2  C.  P.  Div.  311. 
But  reservation  of  right  to  enter  premises  to  repair  the  same  does  not  at- 
tach liability  to  landlord.  Clifford  v.  Cotton  Mills,  146  Mass.  47,  15  N.  E.  84. 
Landlord  is  under  no  implied  obligation  to  make  ordinary  repairs.  Medary 
v.  Gathers,  161  Pa.  St.  87,  28  Atl.  1012. 

.3  Leslie  v.  Pounds,  4  Taunt.  649. 

*  Poor  v.  Sears,  154  Mass.  539,  28  N.  E.  1046.     So,  also,  where  the  owners  of 
a  defective  pier  were  held  liable  to  a  stevedore  for  its  falling  down,  although 
the  lessees  had  covenanted  to  keep  it  in  repair.     Swords  v.  Edgar,  59  N.  Y.  28. 


§    123)  PREMISES    DEFECTIVE    AT    TIME   OF    RENTING.  313 

however,  where  the  tenant  covenants  to  keep  the  premises  in  re- 
pair, he,  and  not  the  landlord,  will  be  liable  for  any  failure  in  that 
respect.5  But  if  the  landlord  undertakes  to  make  repairs,  regard- 
less of  any  agreement  either  on  his  part  or  that  of  the  tenant,  he  will 
be  liable  for  any  negligence  in  that  connection.6 

SAME— PREMISES  DEFECTIVE  AT  TIME  OF  RENTING. 

123.  The  landlord  is  liable,  equally  -with  the  tenant,  to 
persons  other  than  patrons  or  guests  of  the  latter, 
for  injuries  resulting  from,  the  defective  condition 
of  the  premises  at  the  inception  of  the  lease. 

When  the  landlord  makes  a  lease  of  premises  which  are  at  the 
time  in  a  ruinous  or  defective  condition,  he  is  considered  as  au- 
thorizing or  abetting  a  wrong,  and  will  be  liable  for  injuries  suffered 
by  third  persons  in  consequence,  and  in  such  case  the  tenant  is 
equally  liable  with  the  owner.1  The  burden  is,  however,  on  the 
plaintiff  to  show  the  existence  of  the  defective  condition  prior  to 
the  inception  of  the  lease.2  But  guests  or  patrons  of  the  tenant, 
coming  on  the  premises  at  his  request,  cannot  look  to  the  land- 
lord for  recompense  for  injuries  which  they  receive  through  defects 

e  Glass  v.  Colman,  14  Wash.  635,  45  Pac.  310;  Pretty  v.  Bickmore,  L.  R. 
8  C.  P.  401,  approved  in  Gwinnell  v.  Earner,  L.  R.  10  C.  P.  658. 

s  Gill  v.  Middleton,  105  Mass.  477;  Callahan  v.  Laughran,  102  Cal.  476,  36 
Pac.  835. 

§  123.  !  Both  the  owner  who  constructs  an  offensive  cesspool  and  the 
tenant  who  uses  the  premises  are  liable  for  injury  to  an  adjoining  occupant. 
O wings  v.  Jones,  9  Md.  108;  Joyce  v.  Martin,  15  R.  I.  558,  10  Atl.  620.  See, 
also,  McDonough  v.  Gilman,  3  Allen  (Mass.)  264;  O'Connor  v.  Andrews,  81 
Tex.  28,  16  S.  W.  628;  McGuire  v.  Spence,  91  X.  Y.  303;  Davenport  v.  Ruck- 
man,  10  Bosw.  (N.  Y.)  20,  37,  16  Abb.  Prac.  (X.  Y.)  341,  affirmed  in  37  X.  Y.  568: 
Moody  v.  City  of  Xew  York,  43  Barb.  (N.  Y.)  282;  Fish  v.  Dodge,  4  Denio 
(X.  Y.)  311;  Kuauss  v.  Brua,  107  Pa.  St.  85;  Dorman  v.  Ames,  12  Minn.  431 
(Gil.  347);  House  v.  Metcalf,  27  Conn.  031;  Larue  v.  Hotel  Co.,  116  Mass.  67; 
Hines  v.  Willcox,  96  Tenn.  148,  33  S.  W.  914;  Todd  v.  Flight,  9  C.  B.  (X.  S.) 
377;  Gaudy  v.  Jubber,  5  Best  &  S.  485;  Rich  v.  Basterfield,  4  C.  B.  783;  Rus- 
sell v.  Shenton,  3  Q.  B.  449.  Boarder  of  tenant,  Stenberg  v.  Willcox,  96  Term. 
163,  33  S.  W.  917;  Matthews  v.  De  Groff,  13  App.  Div.  356,  43  N.  Y.  Supp. 
237;  Mancuso  v.  Kansas  City,  74  Mo.  App.  138. 

2  Union  Brass  Mfg.  Co.  v.  Lindsay,  10  111.  App.  583. 


314  OCCUPATION    AND    USE    OF    LAND    AND    WATER.  (Ch.   7 

in  the  premises,  even  if  the  defects  existed  before  the  tenant  went 
into  possession,3  or  even  if  the  landlord  has  agreed  to  repair.4 

It  is  essential  to  the  landlord's  liability  that  he  had  notice,  either 
actual  or  constructive,  of  the  existence  of  the  defect.5  It  follows 
as  a  corollary  that  when,  at  the  time  of  the  leasing,  the  premises  are 
not  dangerous,  and  do  not  constitute  a  nuisance,  but  become  such 
through  the  act  of  the  tenant,  the  owner  is  not  responsible.6  Thus, 
if  a  landlord  lets  premises  with  a  stack  of  chimneys  in  a  ruinous  or 
fallen  condition,  he  is  liable  for  damages ; 7  but  if  he  builds  a  chim- 
ney, which,  by  the  act  of  the  tenant,  becomes  a  nuisance,  although 
the  tenant  could  have  built  fires  so  that  a  nuisance  could  have  been 
avoided,  the  tenant  is  liable,  and  not  the  landlord.8  But  if  the  con- 
dition of  nuisance  develops  as  a  natural  consequence  from  the  use 
for  which  the  premises  were  demised,  the  liability  rests  on  the  land- 
lord for  injury  caused  thereby.9  So,  where  the  demise  was  of  a 
lime  kiln  and  quarry,  the  landlord  was  held  liable  for  the  nuisance 
resulting  from  smoke  from  the  kiln,  as  being  the  necessary  conse- 
quence of  an  act  he  had  authorized.10  Where  the  landlord  licenses 

«  Bobbins  v.  Jones,  15  C.  B.  (N.  S.)  221,  240;  Moore  v.  Steel  Co.  (Pa.  Sup.) 
7  Atl.  198;  Mellen  v.  Morrill,  126  Mass.  545;  Marshall  v.  Heard,  59  Tex.  266; 
Ploen  v.  Staff,  9  Mo.  App.  309;  Burdick  v.  Oheadle,  26  Ohio  St.  393.  But  see, 
as  to  employ^,  Anderson  v.  Hayes,  101  Wis.  538,  77  N.  W.  891. 

*  Burdick  v.  Cheadle,  26  Ohio  St.  393;   Ploen  v.  Staff,  9  Mo.  App.  309. 

c  Welfare  v.  Railway  Co.,  L.  R.  4  Q.  B.  693;  Southcote  v.  Stanley,  1  Hurl. 
&  N.  247;  Slight  v.  Gutzlaff,  35  Wis.  675.  But  such  knowledge  may  be  con- 
structive. Timlin  v.  Oil  Co.,  12G  N7.  Y.  514,  27  N.  E.  786;  Dickson  v.  Railway 
Co.,  71  Mo.  575.  And  it  has  been  held  that,  even  if  the  landlord  had  notice  of 
the  defect,  he  is  not  liable  if  the  tenant  is  bound  to  repair.  Pretty  v.  Bick- 
more,  L.  R.  8  C.  P.  401;  Gwinnell  v.  Earner,  L.  R.  10  C.  P.  658.  But  see 
Ingwersen  v.  Rankin,  47  N.  J.  Law,  18;  Coupe  v.  Platt,  172  Mass.  458,  52  N. 
E.  526;  Willcox  v.  Hines,  100  Tenn.  524,  45  S.  W.  781. 

e  Roswell  v.  Prior,  12  Mod.  635;  Godley  v.  Hagerty,  20  Pa.  St.  387;  Coii- 
greve  v.  Smith,  18  N.  T.  79;  Clifford  v.  Dam,  81  N.  Y.  52.  Cf.  Fisher  v. 
Thirkell,  21  Mich.  1-20.  The  owner  and  tenant  may  be  jointly  liable.  Joyce 
v.  Martin,  15  R.  I.  558,  10  Atl.  620  (reviewing  cases). 

7  Todd  v.  Flight,  9  C.  B.  (N.  S.)  377. 

«  Rich  v.  Basterfield,  4  C.  B.  783;   Stickney  v.  Munroe,  44  Me.  195. 

e  Godley  v.  Hagerty,  20  Pa.  St.  387;  Congreve  v.  Smith,  18  N.  Y.  79;  Clif- 
ford v.  Darn,  81  N.  Y.  52. 

10  Harris  v.  James,  45  Law  J.  Q.  B.  545. 


§    124)  LIABILITY    TO    TENANT.  315 

the  lessee  to  perform  acts  amounting  to  a  nuisance,  he  is,  of  course, 
liable.11 

SAME— LIABILITY  TO  TENANT. 

124.  The  landlord  is  not,  in  general,  liable  to  his  tenant, 
or  his  tenant's  servants  or  guests,  for  injuries  caused 
by  defects  in  the  premises,  unless 

(a)  The  former  has  agreed  to  repair,  or  unless 

(b)  The  tenant  is  compelled  to  endanger  himself  in   ob- 

taining access  to  the  premises. 

It  is  a  generally  accepted  rule  that,  in  the  absence  of  fraud  or 
deceit,  no  implied  covenant  exists  that  the  premises  are  adapted 
or  fit  for  the  purposes  for  which  they  are  demised.1  If,  therefore, 
the  leased  premises  become  unfit  for  use,  the  tenant,  in  the  ab- 
sence of  a  specific  agreement,  has  no  redress  against  the  landlord,2 

11  White  v.  Jameson,  L.  K.  18  Eq.  303.  And  see  Lufkin  v.  Zane,  157  Mass. 
117,  31  N.  E.  757. 

§  124.  i  Jaffe  v.  Harteau,  56  N.  Y.  398;  O'Brien  v.  Capwell,  59  Barb.  (N. 
Y.)  497;  Cleves  v.  Willoughby,  7  Hill  (N.  Y.)  83;  Flynn  v.  Hatton,  43  How. 
Prac.  (N.  Y.)  333;  Button  v.  Gerrish,  9  Gush.  (Mass.)  89;  Foster  v.  Peyser, 
Id.  242;  Royce  v.  Guggenheim,  106  Mass.  201;  Elliott  v.  Aiken,  45  N.  H.  30; 
Scott  v.  Simons,  54  N.  H.  426;  Hart  v.  Windsor,  12  Mees.  &  W.  68;  Chappell 
v.  Gregory,  34  Beav.  250.  If  the  landlord,  in  making  repairs,  neglects  to  use 
ordinary  skill,  thereby  injuring  the  tenant,  he  is  liable,  although  the  repairs 
were  gratuitous,  and  at  the  solicitation  of  the  tenant.  Gill  v.  Middleton,  105 
Mass.  477;  Callahan  v.  Laughran,  102  Cal.  476,  36  Pac.  835;  Buckley  v. 
Cunningham,  103  Ala.  449,  15  South.  826;  Baker  v.  Holtpzaffell,  4  Taunt.  45; 
Bowe  v.  Hunking,  135  Mass.  380;  Naumberg  v.  Young,  44  N.  J.  Law,  331-345. 
But  the  law  has  been  changed  by  statute  in  OHIO  and  INDIANA.  See,  also, 
Hollis  v.  Brown,  33  Am.  Law  Reg.  114,  115,  159  Pa.  St.  539,  28  Atl.  360;  Harpel 
v.  Fall,  63  Minn.  520,  65  N.  W.  913;  Holton  v.  Waller,  95  Iowa,  545,  64  N.  W. 
633.  The  maxim  caveat  emptor  applies  equally  to  the  transfer  of  real  as  well 
as  personal  property.  Thomp.  Neg.  p.  323. 

2  Mumford  v.  Brown,  6  Cow.  (N.  Y.)  475;  Howard  v.  Doolittle,  3  Duer  (N. 
Y.)  464;  Doupe  v.  Genin,  45  N.  Y.  119.  And,  of  course,  if  the  lessee,  by  the 
terms  of  the  lease,  assumes  all  risk,  the  lessor  will  not  be  liable  for  damages 
by  reason  of  nonrepair.  Fera  v.  Child,  115  Mass.  32.  Per  contra,  if  the 
agreement  is  otherwise.  Moore  v.  Steljes,  69  Fed.  518;  Laird  v.  McGeorge, 
16  Misc.  Rep.  70,  37  N.  Y.  Supp.  631;  Schanda  v.  Sulzberger,  7  App.  Div.  221, 
40  N.  Y.  Supp.  116;  Miller  v.  Rinaldo,  21  Misc.  Rep.  470,  47  N.  Y.  Supp.  636; 
Wynne  v.  Haight,  27  App.  Div.  7,  50  N.  Y.  Supp.  187;  Willcox  v.  Hines,  100 


316  OCCUPATION    AND    USE    OF    LAND    AND    WATER.  (Ch.  7 

and  servants  and  others  entering  under  the  tenant's  title  assume 
the  like  risk.3  But  the  landlord  may  neither  impair  the  tenure  by 
his  own  acts,  or  permit  it  to  be  impaired  by  the  acts  of  third  per- 
sons.4 And  so  a  tenant  may  maintain  an  action  against  his  land- 
lord for  permitting  a  third  person  to  construct  a  chimney  obstruct- 
ing plaintiff's  windows.6 

125.  SAFE  ACCESS  TO  RENTED  PROPERTY— The  ten- 
ant is  entitled  to  reasonably  safe  ingress  to  and 
egress  from  the  leased  premises,  and  has  recourse 
against  the  landlord  for  his  failure  of  duty  in  this 
regard. 

The  landlord  cannot  compel  the  tenant  to  endanger  himself  in 
obtaining  access  to  the  demised  premises;  and  when  the  tenant, 
in  order  to  reach  the  leased  property,  is  obliged  to  pass  over  other 
property  belonging  to  the  landlord,  he  is  entitled  to  have  them  kept 
in  a  reasonably  safe  condition.1 

If  the  owner  agrees  to  make  repairs,  damage  consequent  on  fail- 
ure to  perform  the  covenant  may  be  actionable  ex  contractu.  If 
damage  result  from  negligence  in  making  repairs  under  the  agree- 
ment, recovery  may  be  had  ex  delicto.2  But  the  rule  does  not  apply 

Tenn.  538,  46  S.  W.  297;  Lane  v.  Cox  [1897]  1  Q.  B.  415;  Dowling  v. 
Nuebling,  97  Wis.  350,  72  N.  W.  871;  Haizlip  v.  Rosenberg,  63  Ark.  430,  39 
S.  W.  60.  But  see  Feinstein  v.  Jacobs,  15  Misc.  Rep.  474,  37  N.  Y.  Supp.  345. 

3  Nelson  v.  Brewery  Co.,  2  C.  P.  Div.  311;  O'Brien  v.  Capwell,  59  Barb. 
(N.  Y.)  497;  Bui-dick  v.  Cheadle,  26  Ohio  St.  393;  Anderson  v.  Hayes  (Wis.) 
77  N.  W.  891;  Whitmore  v.  Paper  Co.,  91  Me.  297,  39  Atl.  1032,  40  L.  R.  A. 
377;  Robbins  v.  Jones,  15  C.  B.  (N.  S.)  221,  240.  Members  of  lessee's  family. 
Clyne  v.  Holmes  (N.  J.  Sup.)  39  Atl.  707. 

*  Hysore  v.  Quigley,  9  Houst.  348,  32  Atl.  960;  Jefferson  v.  Jameson  & 
Morse  Co.,  60  111.  App.  587. 

s  Case  v.  Minot,  158  Mass.  577,  33  N.  E.  700. 

§  125.  i  Totten  v.  Phipps,  52  N.  Y.  354;  Elliott  v.  Pray.  10  Allen  (Mass.) 
378;  Gleason  v.  Boehm,  58  N.  J.  Law,  475.  34  Atl.  880;  Feinstein  v.  Jacobs. 
35  Misc.  Rep.  474,  37  N.  Y.  Supp.  345;  Harkin  v.  Crumbie,  14  Misc.  Rep. 
439,  35  N.  Y.  Supp.  1027;  O'Dwyer  v.  O'Brien,  13  App.  Div.  570,  43  X.  Y. 
Supp.  815. 

2  Jag.  Tofts,  p.  227;  Clapper  v.  Kells,  78  Hun.  34.  28  X.  Y.  Supp.  1018; 
Randolph  v.  Feist,  23  Misc.  Rep.  650,  52  X.  Y.  Supp.  109;  Barman  v.  Spencer 
(Ind.  Sup.)  49  N.  E.  9;  Robbins  v.  Atkins,  168  Mass.  45,  46  X.  E.  425;  Wert- 


§    120)  WATER   COURSES.  317 

where  the  injury  is  sustained  by  the  guest  of  the  tenant,  who  comes 
on  the  leased  premises  under  the  tenant's  invitation.  In  such  case 
the  injured  party  must  look  to  the  tenant  for  his  compensation.3 

It  is  hardly  necessary  to  add  that  the  tenant  cannot  throw  the 
burden  of  liability  on  the  landlord  in  any  case  where  the  injury  is 
due  to  his  improper  or  careless  use  of  an  appurtenance  or  appliance 
which,  although  defective,  could  have  been  safely  used  with  due 
care,  or  need  not  have  been  used  at  all.  Thus,  if  a  tenement  con- 
tains a  defective  chimney,  and  the  tenant,  knowing  its  condition, 
uses  it  carelessly  or  unnecessarily,  he  cannot  complain  if  he  is 
damaged  thereby;  nor,  if  such  use  result  in  injury  to  others,  could 
he  defend  by  showing  a  covenant  to  repair  on  the  part  of  the  land- 
lord.* 

WATER  COURSES. 

126.  Every  riparian  owner  is  entitled  to  have  the  -water 
flow  in  its  natural  channel,  and  any  interference 
•with  its  movement  is  a  direct  violation  of  such  right, 
for  -which  the  injured  party  may  obtain  redress.1 

heimer  v.  Saunders,  95  Wis.  573,  70  N.  W.  824.  Necessity  of  notice  to  land- 
lord to  fix  liability.  Marley  v.  Wheelwright,  172  Mass.  530,  52  N.  E.  1066; 
Idel  v.  Mitchell,  158  N.  Y.  134,  52  N.  E.  740;  Lynch  v.  Swan,  167  Mass.  510, 
40  X.  E.  51.  But  the  fact  that  the  landlord,  after  the  cellar  had  become 
flooded  with  filth  and  water,  gratuitously  undertook  to  remove  the  same, 
and  did  so  negligently,  does  not  entitle  the  tenant  to  abandon  the  prem- 
ises. Blake  v.  Dick.  15  Mont.  236,  38  Pac.  1072;  Callahan  v.  Loughran,  102 
Cal.  476,  36  Pac.  835. 

s  Bobbins  v.  Jones,  15  C.  B.  (N.  S.)  221,  240;  Mellen  v.  Morrill,  126  Mass. 
545;  Marshall  v.  Heard.  59  Tex.  266;  Moore  v.  Steel  Co.  (Pa.  Sup.)  7  Atl.  198; 
Ganley  v.  Hall,  168  Mass.  513,  47  N.  E.  416;  Harkin  v.  Crumbie,  20  Misc. 
Bep.  568,  46  X.  Y.  Supp.  453;  Hanson  v.  Beckwith  (R.  I.)  37  Atl.  702.  Nor 
is  it  material  that  the  injuries  are  sustained  during  the  existence  of  a 
covenant  on  the  part  of  the  landlord  to  repair.  Ploen  v.  Staff,  9  Mo.  App. 
309;  Burdick  v.  Cheadle,  26  Ohio  St.  393;  Eyre  v.  Jordan,  111  Mo.  424,  19 
S.  W.  1095.  But  see  Barman  v.  Spencer  (Ind.  Sup.)  49  N.  E.  9. 

*  Boston  v.  Gray,  144  Mass.  53,  10  N.  E.  509;  Shindelbeck  v.  Moon,  32 
Ohio  St.  264;  Reiner  v.  Jones  (Sup.)  56  N.  Y.  Supp.  423;  Pickard  v.  Smith, 
10  C.  B.  (N.  S.)  470. 

§  126.  i  Bellinger  v.  Railroad  Co.,  23  N.  Y.  42.  See,  also,  Pixley  v. 
Clark.  35  X.  Y.  520;  Selden  v.  Canal  Co.,  24  Barb.  (N.  Y.)  362;  Plattsmouth 
Water  Co.  v.  Smith  (Xeb.)  78  N.  W.  275. 


318  OCCUPATION    AND    USE    OP   LAND    AND    WATER.  (Ch.  7 

Ordinarily,  the  question  of  want  of  due  care  or  negligence  does  not 
arise  in  this  class  of  cases,  for  the  reason  that  the  action  depends 
on  the  immediate  and  direct  violation  of  the  right  of  the  riparian 
owner  to  have  the  water  flow  in  its  natural  channel;  but,  if  the  in- 
terference is  pursuant  to  legislative  authority,  liability  results  for 
such  injury  only  as  arises  from  want  of  due  care  and  skill  in  the 
performance  of  the  work.2 


SAME— CONSTRUCTION  AND  MAINTENANCE  OF  DAMS. 

127.  One  may  rightfully  construct  a  dam  on  his  own  land, 

but  he  must  so  construct  it  as  not  to  injure  others 
having  vested  rights  liable  to  be  affected  thereby. 

Thus,  one  who  builds  a  darn  is  liable  to  another  riparian  owner 
for  damages  caused  by  the  consequent  displacement  of  the  water, 
whether  it  occurs  by  reason  of  flowage,  overflow,  or  percolation.1 
But,  when  the  injury  is  to  other  mills  on  the  same  stream,  to  entitle 
the  injured  party  to  redress  it  must  appear  either  that  the  work  was 
improperly  done,  or  that  the  injury  was  direct  and  palpable.8  In 
such  cases  the  law  raises  a  presumption  of  damage.8 

128.  RULE    IN    UNITED    STATES— When   one  builds   a 

milldam  upon  a  proper  model,  and  the  work  is  well 
and  substantially  done,  he  is  not  liable  in  an  action, 
though  it  break  away,  in  consequence  of  which  his 
neighbor's  dam  and  mill  below  are  destroyed.  Neg- 
ligence must  be  shown,  in  order  to  make  him  lia- 
ble.1 

*  Bellinger  v.  Railroad  Co.,  23  N.  Y.  47. 

§  127.  iPixley  v.  Clark,  35  N.  Y.  520;  Crittendon  v.  Wilson,  5  Cow.  (N. 
Y.)  165. 

2  Robertson  v.  Miller,  40  Conn.  40;  Hartzall  v.  Sill,  12  Pa.  St.  248;  Hoy 
v.  Sterrett,  2  Watts  (Pa.)  327;  Shear.  &  R.  Neg.  (4th  Ed.)  §  730. 

s  Hatch  v.  Dwight,  17  Mass.  289;  Woodman  v.  Tufts,  9  N.  H.  88;  Van 
Bergen  v.  Van  Bergen,  3  Johns.  Ch.  (N.  Y.)  282. 

§  128.     i  Livingston  v.  Adams,  8  Cow.  (N.  Y.)  175. 


§    129)  OBSTRUCTION    OF    NAVIGABLE    STREAMS.  319 

The  foregoing  is  the  rule  almost  universally  followed. in  this  coun- 
try.2 If,  therefore,  one  rightfully  constructs  a  dam,  and,  by  rea- 
son of  an  unforeseen  accumulation  of  water  or  ice,  it  bursts  through, 
and  floods  the  surrounding  country,  or  washes  away  the  dam  of  a 
lower  mill  owner,  he  will  not  be  liable  for  the  consequent  damage, 
unless  it  appears  that  it  was  caused  through  his  fault  or  negli- 
gence.3 Of  course,  it  will  not  be  sufficient  defense  in  such  case  to 
show  that  the  dam  was  strong  enough  to  resist  ordinary  floods; 4 
it  must  appear  that  it  was  constructed  with  due  diligence  and  care, 
and  was  strong  enough  to  resist  freshets  reasonably  within  the 
range  of  probability.5 

The  English  rule  differs  from  the  above.  Under  their  decisions 
the  accumulation  of  water,  either  in  dams  or  reservoirs,  by  artifi- 
cial means,  is  made  analogous  to  the  possession  and  confinement 
of  wild  and  dangerous  animals,  which  must,  at  the  peril  of  the  owner, 
be  kept  from  doing  harm.  The  question  of  due  care  and  diligence 
in  the  construction  of  dams  is,  therefore,  eliminated  from  their 
cases.6 

SAME— OBSTRUCTION  OF  NAVIGABLE  STREAMS. 

129.  The  rights  of  the  riparian  owner  and  the  navigator 
of  a  stream  are  reciprocal,  and  neither  may  un- 
necessarily or  negligently  interfere  with  the  erjoy- 
ment  by  the  other  of  his  prerogative. 

a  Livingston  v.  Adams,  8  Cow.  (N.  Y.)  175;  Pixley  v.  Clark,  32  Barb.  (N. 
Y.)  268,  reversed  in  35  N.  Y.  520;  Losee  v.  Buchanan,  51  N.  Y.  476,  directly 
overruling  Fletcher  v.  Rylands,  L.  R.  1  Exch.  265;  Lapham  v.  Curtis,  5 
Vt.  371;  Todd  v.  Cochell,  17  Cal.  97;  Inhabitants  of  Shrewsbury  v.  Smith, 
12  Gush.  (Mass.)  177;  Sheldon  v.  Sherman,  42  N.  Y.  484. 

a  Ang.  Water  Courses,  §  336. 

*  Ang.  Water  Courses,  §  336. 

s  Livingston  v.  Adams,  8  Cow.  (N.  Y.)  175;  Pixley  v.  Clark,  32  Barb.  (N. 
Y.)  268;  Everett  v.  Flume  Co.,  23  Cal.  225;  Gray  v.  Harris,  107  Mass.  492; 
Lapham  v.  Curtis,  5  Vt.  371;  Town  of  Monroe  v.  Connecticut  River  Lum- 
ber Co.  (N.  H.)  39  Atl.  1019;  Hunter  v.  Pelham  Mills,  52  S.  C.  279,  29  S. 
E.  727. 

e  Fletcher  v.  Rylands,  L.  R.  1  Exch.  2G5,  affirmed  in  L.  R.  3  H.  L.  330; 
Smith  v.  Fletcher,  L.  R.  7  Exch.  305. 


320  OCCUPATION    AND    USE    OF    LAND    AND    WATEK.  (Ch.   7 

The  rights. of  the  riparian  owner  and  one  seeking  to  use  the  wa- 
ters for  legitimate  purposes  are  reciprocal.  The  one  has  an  abso- 
lute right  to  the  peaceable  enjoyment  of  his  lands;  the  other,  as 
a  member  of  the  public,  has  an  equal  right  to  navigate  the  stream; 
but  neither  may  unnecessarily  or  negligently  interfere  with  the 
other's  enjoyment  of  his  prerogative.  Thus,  keeping  a  boom  fas- 
tened to  the  shore  unnecessarily,  or  for  too  long  a  time,  would  create 
a  nuisance,1  and  would  be  abatable  by  indictment.  If,  however,  the 
owner  of  a  wreck  abandons  it,  he  will  not  be  responsible  for  ob- 
structing the  channel,  nor  to  another  vessel  owner  for  damages 
caused  thereby ; 2  but,  if  he  retains  control  of  it,  he  is  bound  to 
exercise  due  care  and  diligence  in  its  removal.3  And  if  a  bridge 
is  built  across  a  navigable  stream,  even  with  legislative  sanction, 
it  will  still  be  an  abatable  nuisance  if  not  constructed  with  due 
care  and  regard  for  the  navigable  properties  of  the  stream.* 

§  129.     iWeise  v.  Smith,  3  Or.  445. 

2  Winpenny  v.  Philadelphia.  65  Pa.  St.  136;  Rex  v.  Watts,  2  Esp.  675. 
But  see  Boston  &  Hingham  Steamboat  Co.  v.  Munson,  117  Mass.  34. 

s  Taylor  v.  Insurance  Co.,  37  N.  Y.  275;  Boston  &  Hingham  Steamboat 
Co.  v.  Munson,  117  Mass.  34. 

*  Dugan  v.  Bridge  Co.,  27  Pa.  St.  303;  Monongahela  Bridge  Co.  v.  Kirk, 
46  Pa.  St.  112;  Eastman  v.  Manufacturing  Co.,  44  N.  H.  143;  Lansing  v. 
Smith,  8  Cow.  (N.  Y.)  146;  Ely  v.  City  of  Rochester,  26  Barb.  (N.  Y.)  133. 


§    130  DANGEROUS   INSTRUMENTALITIES.  32] 

CHAPTER  VIII. 

DANGEROUS  INSTRUMENTALITIES. 

130.  Railroads— Degree  of  Care  Exacted  in  Operating. 
131-132.  Collision  with  Persons— Care  Required  of  Railroad. 

133.  Care  Proportioned  to  Danger. 

134.  Signals. 

135.  Care  Required  of  Persons. 

136.  Failure  to  Give  Signals. 

137.  Assurance  of  Safety  by  Agents. 

138.  Obstructed  View. 

139.  Infirm  Travelers. 

140.  Contributory  Negligence. 

141.  Collision  with  Animals. 

142.  Wanton  or  Willful  Injury. 

143.  Care  after  Discovery. 

144.  Fences. 

145.  Fires. 

146.  Intentional  Fires. 

147.  Accidental  Fires. 

148.  Railroad  Fires. 

149.  Degree  of  Care. 

150.  Animals. 

151.  Domestic  Animals. 

152.  Communicating  Disease. 

153.  Firearms. 

154.  Explosives. 

155.  Poisons. 

BAILROADS— DEGREE    OF  CARE    EXACTED  IN  OPERATING. 

130.  It  is  the  duty  of  a  railroad  company  to  use  ordinary 
care  in  the  operation  of  its  trains  to  avoid  injury 
to  those  persons  who,  not  being  passengers  or  em- 
ployes, are  rightfully  upon  or  near  its  tracks. 

Many  of  the  duties  incident  to  the  operation  of  railroads  have 
been  already  enumerated  and  discussed  under  the  heads  of  "Com- 
mon Carriers"  or  "Master  and  Servant."  It  remains,  however,  to 
consider  the  relation  of  this  class  of  carriers  to  that  portion  of  the 

BAR.NEG.— 21 


322  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

general  public  whose  rights  are  affected  by  involuntary  contact 
with  the  operation  of  railroads,  and  the  mutual  duties  that  spring 
from  such  relation.  Aside  from  its  duties  as  a  common  carrier  of 
goods  or  passengers,  a  railroad,  in  its  general  conduct  and  opera- 
tion, is  subject  only  to  the  application  of  those  general  rules  of  care 
and  prudence  which  the  law  imposes  upon  any  one  who  controls  or 
operates  a  dangerous  instrumentality.  It  is  only  in  so  far  as  the 
operation  of  railroads  involves  the  use  of  unusually  and  obviously 
dangerous  agencies  which,  in  the  absence  of  proportionate  care, 
would  endanger  the  lives  and  property  of  the  general  public,  that 
the  subject  demands  special  attention.  And  in  this  particular  it  is 
evident  that  the  chief  source  of  danger  is  that  of  collision  between 
railroad  trains  and  persons  or  animals. 


SAME— COLLISION    WITH    PERSONS— CARE     REQUIRED    OP 

RAILROAD. 

131.  It  is  the  duty  of  the  company  to  exercise  towards  a 

member  of  the  public,  rightfully  upon  or  near  its 
track,  that  degree  of  care  which  an  ordinarily  pru- 
dent person  would  exercise  in  operating  a  train  in 
similar  circumstances. 

132.  The  care  required  in  a  given  case  must  be  in  propor- 

tion to  the  liability  of  collision,  and  includes  rigid 
observance  of  statutory  requirements,  and  such 
other  and  further  signals,  lights,  rate  of  speed,  and 
regulations  as  circumstances  reasonably  require. 

The  speed  and  weight  of  a  railroad  train  constitute  a  danger- 
ous agency,  raising  the  degree  of  actual  care  commensurate  with 
its  safe  operation  vastly  higher  than  that  required  in  driving  a  de- 
livery wagon  or  a  coach.1  And  therefore,  while  it  is  strictly  ac- 
curate to  say  that  no  more  than  ordinary  care  for  the  safety  of 
the  nontraveling  public  is  required  in  the  operation  of  railroad 
trains,  it  is  misleading,  for  "ordinary  care,"  in  such  a  sense,  often 

§§  131-132.  i  Johnson  v.  Railroad  Co.,  6  Duer  (.N.  Y.)  633,  affirmed  in  20 
N.  Y.  05. 


§§  131-132)  COLLISION  WITH  PERSONS.  323 

amounts  to  very  nearly  the  utmost  care  which  the  circumstances 
permit.2 

But  while  the  true  test  is  doubtless  the  degree  of  care  which  an 
ordinarily  prudent  person,  skilled  in  the  management  of  trains, 
would  have  employed  in  the  particular  circumstances,  it  must  be 
borne  in  mind  that  the  circumstances  themselves  entitle  the  opera- 
tor of  the  train  to  make  certain  presumptions.  Thus,  the  engineer 
of  a  train  approaching  a  crossing,  and  giving  the  proper  and  reason- 
able signals  by  ringing  or  whistling,  may  rightfully  assume  that  a 
person  upon  the  crossing,  having  ample  time  to  do  so,  will  cross 
before  the  arrival  of  the  train,  and  to  this  extent,  at  least,  the  train 
has  the  right  of  way.8  The  same  is  also  true  of  the  operation  of 
street  cars,  and  the  walking  and  driving  public  are  bound,  so  far  as 
they  can  reasonably  do  so,  to  keep  out  of  the  way  of  the  cars.  And 
so,  if  defendant's  street  car  collides  with  plaintiff's  wagon,  which 
is  being  driven  upon  its  tracks,  it  does  not  follow  conclusively  that 
the  collision  was  due  to  defendant's  negligence.  It  is  essential,  to 
a  recovery  in  such  a  case,  to  show  that  defendant  failed  to  exercise 
the  degree  of  care  which  an  ordinarily  prudent  person  would  have 
used  in  similar  circumstances.4 

Ordinary  Care — Illustrations. 

Illustrations  of  the  care  required  of  railroads  towards  those  right- 
fully upon  or  near  their  tracks  are  almost  innumerable.  A  railroad 

2  In  Johnson  v.  Railroad  Co.,  20  N.  Y.  65,  the  court  charged  that,  in  the 
circumstances,  the  defendants  were  "bound  to  exercise  the  utmost  care  and  dili- 
gence, and,  for  the  purpose  of  avoiding  accidents  endangering  property  and 
life,  were  bound  to  use  all  the  means  and  measures  of  precaution  that  the 
highest  prudence  could  suggest,  and  which  it  was  in  their  power  to  employ." 
See,  also,  Weber  v.  Railroad  Co.,  58  N.  Y.  451;  Kay  v.  Railroad  Co.,  65  Pa.  St. 
269;  Pennsylvania  R.  Co.  v.  Coon,  111  Pa,  St.  430,  3  Atl.  234;  Fallen  v. 
Boston,  3  Allen  (Mass.)  38;  Fletcher  v.  Railroad  Co.,  1  Allen  (Mass.)  9. 

a  Black  v.  Railroad  Co.,  38  Iowa,  515;  Madison  &  I.  R.  Co.  v.  Taffe,  37  Ind. 
361,  364;  Pennsylvania  Co.  v.  Krick,  47  Ind.  368;  Illinois  Cent.  R,  Co.  v.  Ben- 
ton,  69  111.  174. 

*  Gumb  v.  Railway  Co.,  53  N.  Y.  Super.  Ct.  466.  See,  also,  Com.  v.  Boston 
&  W.  R.  Corp.,  101  Mass.  201.  But  see  Bernhard  v.  Railway  Co.,  68  Hun, 
369,  22  N.  Y.  Supp.  821;  Harvey  v.  Railroad  Co.,  35  App.  Div.  307,  55  N.  Y. 
Supp.  20;  De  loia  v.  Railroad  Co.,  37  App.  Div.  455,  56  X.  Y.  Supp.  22;  Lef- 
kowitz  v.  Railway  Co.  (Sup.)  56  N.  Y.  Supp.  215;  Cawley  v.  Railway  Co., 
101  Wis.  145,  77  N.  W.  179. 


324  DANGEROUS    INSTRUMENTALITIES.  (Ch.  8 

company  is  liable  to  one  rightfully  standing  on  its  platform  for  in- 
juries resulting  from  being  struck  by  a  mail  bag  5  or  timber  6  thrown 
from  its  train;  for  letting  off  steam  or  hot  water  in  a  negligent 
manner.7  Whether  it  is  the  duty  of  a  railroad  to  warn  persons 
passing  a  crossing  that  there  is  danger  from  steam  escaping  is  a 
question  for  the  jury.8  Unnecessary  and  extraordinary  use  of  the 
whistle  is  negligence.9  It  is  negligence  to  back  a  train,  for  pur- 
poses of  coupling,  without  giving  customary  signals.10  And,  al- 
though a  signal  is  not  required  by  statute,  if  reasonable  precaution 
requires  it,  it  should  be  given; X1  and,  conversely,  the  giving  of 
statutory  signals  does  not  always  discharge  the  company  from  neg- 
ligence.12 Where  plaintiff's  intestate,  in  crossing  defendant's  tracks 
at  their  intersection  with  a  city  street,  on  a  dark  night,  was  struck 
by  an  engine  moving  backwards,  the  charge  that  "the  company  was 
bound  to  have  so  much  light,  and  so  located,  that  a  person  reason- 
ably diligent,  and  of  natural  powers  of  observation,  might  have 
been  able  to  discover  it,"  was  held  correct.13  As  a  matter  of  law, 
it  is  not  negligence  if  an  engineer,  seeing  danger  400  feet  ahead, 
and  doing  everything  in  his  power,  is  not  able  to  check  his  train.14 
It  is  for  the  jury  to  determine,  in  the  circumstances,  whether  the 

s  Galloway  v.  Railway  Co.,  56  Minn.  346,  57  N.  W.  1058;  Carpenter  v.  Rail- 
road Co.,  97  N.  Y.  494. 

e  Toledo,  W.  &  W.  Ry.  Co.  v.  Maine,  67  111.  298;  Fletcher  v.  Railroad  Co., 
168  U.  S.  135,  18  Sup.  Ct.  35. 

7  Texas  &  P.  Ry.  Co.  v.  Woodall,  2  Willson,  Civ.  Gas.  Ct.  App.  §  471. 

s  Lewis  v.  Railroad  Co.,  60  N.  H.  187. 

»  Philadelphia  &  R.  R.  Co.  v.  Killips,  88  Pa.  St.  405.  And  see  Gibbs  v.  Rail- 
way Co.,  26  Minn.  427,  4  N.  W.  819;  Billman  v.  Railroad  Co.,  76  Ind.  166; 
Pennsylvania  R.  Co.  v.  Barnett,  59  Pa.  St.  259.  Negligently  blowing  whistle 
and  scaring  horses.  Chicago,  B.  &  Q.  R.  Co.  v.  Yorty,  158  111.  321,  42  N.  E. 
64;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Spence  (Tex.  Civ.  App.)  32  S.  W.  329;  Rodgers 
v.  Railway  Co.,  150  Ind.  397,  49  N.  E.  453. 

10  Roniick  v.  Railway  Co.,  62  Iowa,  167,  17  N.  W.  458. 

11  Bradley  v.  Railroad  Co.,  2  Gush.  (Mass.)  539. 

12  Bradley  v.  Railroad  Co.,  2  Cush.  (Mass.)  539;    Thompson  v.  Railroad  Co., 
110  N.  Y.  636,  17  N.  E.  690;  Vandewater  v.  Railroad  Co.,  135  N.  Y.  583,  32  N.  E. 
636. 

is  Cheney  v.  Railroad  Co.,  16  Hun  ^N.  Y.)  415;  Purnell  v.  Railroad  Co.,  122 
N.  C.  832,  29  S.  E.  953. 

i*  Ex  parte  Stell,  4  Hughes,  157,  Fed.  Cas.  No.  13,358. 


§    133)  CARE    PROPORTIONED   TO    DANGER.  325 

so-called  "flying  switch"  is  safe  and  prudent.15  Although  not  re- 
quired by  law  to  keep  a  flagman  at  a  crossing,  the  company  is  liable 
for  the  negligence  of  one  voluntarily  so  placed.18  So,  also,  in  the 
operation  of  a  gate  voluntarily  placed  at  a  crossing.17  But  one 
for  whose  benefit  a  signal  was  not  intended  cannot  complain  of  its 
omission,  and  it  was  so  held  where  the  death  of  one  killed  at  a 
farm  crossing  was  attributed  to  defendant's  failure  to  give  custom- 
ary signals  for  the  highway  crossing  beyond.18 

133.  CARE  PROPORTIONED  TO  DANGER— The  degree 
of  actual  care  required  of  the  company  increases  in 
proportion  to  the  danger  of  accident  arising  from 
the  location  of  the  track  or  crossing,  or  any  other 
circumstance  of  -which  the  company  has  knowledge, 
and  which  tends  to  conceal,  obscure,  or  otherwise 
increase  the  danger  of  collision. 

Where  the  track  parallels  the  highway,  or  runs  upon  it,  or  where 
crossings  are  unusually  numerous  or  frequented,  the  danger  of  ac- 
cident from  the  operation  of  trains  is  greatly  increased,  and  ordi- 
nary care  in  these  circumstances  may  require  a  very  high  degree 
of  diligence.1  Circumstances  may  require  a  greater  degree  of  care 

IB  White  v.  Railroad  Co.,  136  Mass.  321;  Howard  v.  Railroad  Co.,  32  Minn. 
214,  20  N.  W.  43.  But  a  flying  switch  over  a  highway  has  been  held  gross 
and  criminal  negligence.  Brown  v.  Railroad  Co.,  32  N.  Y.  597;  O'Connor  v. 
Railroad  Co.,  94  Mo.  150,  7  S.  W.  106;  Chicago  &  A.  R.  Co.  v.  O'Neil,  64  111. 
App.  623. 

is  Sweeny  v.  Railroad  Co.,  10  Allen  (Mass.)  368;  Kissenger  v.  Railroad 
Co.,  56  X.  Y.  538.  And  even  the  absence  of  a  gate  or  flagman  may  impute 
negligence,  Eaton  v.  Railroad  Co.,  129  Mass.  364;  or  may  be  for  the  jury, 
Lesan  v.  Railroad  Co.,  77  Me.  85. 

17  Glushing  v.  Sharp,  96  N.  Y.  676;  Palmer  v.  Railroad  Co.,  112  N.  Y.  234, 
19  N.  E.  678. 

is  Yandewater  v.  Railroad  Co.,  135  N.  Y.  583,  32  N.  E.  636;  Reynolds  v. 
Railroad  Co..  16  C.  C.  A.  435,  69  Fed.  808;  Atlanta  &  Central  Air-Line  Ry. 
Co.  v.  Gravitt,  93  Ga.  369,  20  S.  E.  550.  Per  contra,  Galveston,  H.  &  S.  A. 
Ry.  Co.  v.  Garteiser,  9  Tex.  Civ.  App.  456,  29  S.  W.  939. 

§  133.  i  Toledo,  W.  &  W.  R.  Co.  v.  Harmon,  47  111.  298;  Weber  v.  Railroad 
Co.,  58  N.  Y.  451;  Dyer  v.  Railroad  Co.,  71  X.  Y.  228;  Thompson  v.  Railroad 
Co.,  110  N.  Y.  636,  17  N.  E.  690;  Houston  &  T.  C.  R.  Co.  v.  Laskowski  (Tex. 


326  DANGEROUS    INSTRUMENTALITIES.  (Ch.  8 

than  is  comprehended  in  such  ordinary  precautions  as  a  slow  rate 
of  speed,2  ringing  the  bell,3  and  sounding  the  whistle,4  and  it  was 
held  that  it  was  not  error  to  charge  that  the  engineer  must  "keep 
a  lookout  to  see  whether  he  is  running  down  foot  passengers  who 
are  crossing  the  railroad  track  upon  the  highways  of  the  city."5 
Where  the  danger  is  increased  by  the  darkness  of  night,  suitable 
rear  and  head  lights  must  be  used,  and  the  number  and  character 
is  for  the  jury  to  determine  in  the  circumstances.6  In  approaching 
crowded  or  much-used  crossings,  the  engineer,  in  addition  to  ordi- 
nary signals,  should  slacken  speed,  so  that  he  can  readily  place  it 
under  control  if  it  becomes  necessary;7  but  an  instruction  that  a 
train  approaching  a  crossing  should  be  under  control  has  been  held 
erroneous.8  Where  the  location  of  the  crossing  is  such  that  the 
traveler  cannot  see  the  train,  or  readily  hear  the  signals,  the  engi- 
neer must  observe  every  reasonable  precaution.9  The  proximity  in 
which  trains  are  run  over  public  crossings  may  also  constitute  neg- 

Civ.  App.)  47  S.  W.  59.  Causing  an  obstruction  of  the  view  from  a  crossing 
by  piling  wood  or  erecting  buildings,  Mackay  v.  Railroad  Co.,  35  N.  Y.  75;  or 
permitting  weeds  to  grow  in  right  of  way,  with  same  result,  Indianapolis  & 
St.  L.  R.  Co.  v.  Smith,  78  111.  112,— is  negligence. 

2  Chicago,  B.  &  Q.  R.  Co.  v.  Dougherty,  12  111.  App.  181;  Chicago  &  A.  R. 
Co.  v.  Dillon,  123  111.  570,  15  N.  E.  181. 

sVandewater  v.  Railroad  Co.,  74  Hun,  32,  26  N.  Y.  Supp.  397;  Barry  v. 
Railroad  Co.,  92  N.  Y.  289. 

*  Indianapolis  &  St.  L.  R.  Co.  v.  Stout,  53  Ind.  143. 

e  Cheney  v.  Railroad  Co.,  16  Hun  (N.  Y.)  415. 

«  Cheney  v.  Railroad  Co.,  16  Hun  (N.  Y.)  415;  Indianapolis  &  St.  L.  R.  Co. 
v.  Galbreath,  63  111.  436;  Baltimore  &  O.  S.  W.  Ry.  Co.  v.  Alsop,  71  111.  App.  54. 

7  Powell  v.  Railway  Co.,  59  Mo.  App.  626;  Lafayette  &  I.  R.  R.  Co.  v.  Adams, 
26  Ind.  76;  Maginnis  v.  Railroad  Co.,  52  N.  Y.  215.  But  this  does  not  apply  to 
crossings  seldom  frequented.  Warner  v.  Railroad  Co.,  44  N.  Y.  465;  Chicago, 
R.  I.  &  P.  Ry.  Co.  v.  Ohlsson,  70  111.  App.  487. 

s  Cohen  v.  Railroad  Co.,  14  Nev.  376.  See,  also,  Telfer  v.  Railroad  Co.,  30 
N.  J.  Law,  188;  Chicago  &  A.  R.  Co.  v.  Robinson,  9  111.  App.  89. 

»  Grippen  v.  Railroad  Co.,  40  N.  Y.  34;  Eilert  v.  Railroad  Co.,  48  Wis.  606, 
4  N.  W.  769;  Richardson  v.  Railroad  Co.,  45  N.  Y.  846;  Baltimore  &  P.  R. 
Co.  v.  Webster,  6  App.  D.  C.  182;  Willet  v.  Railroad  Co.,  114  Mich.  411,  72 
N.  W.  260.  It  is  negligence  on  the  part  of  the  company  to  permit  weeds  to 
grow  in  its  right  of  way  adjacent  to  a  crossing  so  as  to  obstruct  the  view  of 
one  about  to  cross.  Indianapolis  &  St.  L.  R.  Co.  v.  Smith,  78  111.  112;  Chicago, 
B.  &  Q.  R.  Co.  v.  Lee,  87  111.  454. 


§    133)  CARE    PROPORTIONED    TO    DANGER.  327 

ligeuce,  if  it  is  so  great  as  to  make  the  customary  signals  unavail- 
ing. This  was  so  held  in  a  case  where  plaintiff  was  waiting  for  a 
long  train  to  pass  in  order  to  cross.  So  soon  as  the  train  had 
passed,  and  after  looking  up  and  down  the  track  so  far  as  was 
possible,  she  attempted  to  cross,  but  was  injured  by  another  train, 
following  closely  behind  the  first.10  To  constitute  a  public  cross- 
ing, it  is  not  necessary  that  it  should  be  a  highway.  When  the 
public  have  for  a  long  time  openly,  habitually,  and  with  the  ac- 
quiescence of  the  railroad  company  crossed  a  railroad  at  a  point 
not  a  traveled  way,  such  acquiescence  amounts  to  a  license,  and  the 
company  is  bound  to  exercise  reasonable  care  to  avoid  injury  to 
persons  crossing  at  that  point; "  and  this  is  true  even  if  such  cross- 
ing is  contrary  to  statute,12  or  in  violation  of  the  rules  of  the  com- 
pany.13 It  is  for  the  jury  to  determine  in  such  case  as  to  the  suffi- 
ciency and  reasonableness  of  the  warning.14  But  where  the  com- 
pany has  merely  permitted  an  indiscriminate  crossing,15  or  the  act 
is  in  itself  a  trespass,16  the  company  will  be  relieved  of  liability  by 

10  Chicago  &  E.  I.  R.  Co.  v.  Boggs,  101  Ind.  522;  Golden  v.  Railroad  Co.,  187 
Pa.  St.  635,  41  Atl.  302,  43  Wkly.  Notes  Cas.  106;   but  this  would  not*  be  neg- 
ligence at  a  place  not  a  public  crossing,  Philadelphia  &  R.  R.  Co.  v.  Spearen, 
47  Pa.  St.  300.     And  see  French  v.  Railroad  Co.,  116  Mass.  537. 

11  Norfolk  &  W.  R.  Co.  v.  De  Board's  Adm'r,  91  Va.  700,  22  S.  E.  514;   Han- 
sen  v.  Railway  Co.,  105  Cal.  379,  38  Pac.  957;    Swift  v.  Railroad  Co.,  123  N. 
Y.  645,  25  N.  E.  378;    Taylor  v.  Canal  Co.,  113  Pa.  St.  162,  8  Atl.  43;    Byrne 
v.  Railroad  Co.,  104  N.  Y.  362,  10  N.  E.  539;    Cleveland,  C.,  C.  &  St.  L.  R. 
Co.  v.  Adair,  12  Ind.  App.  569,  39  N.  E.  672,  and  40  N.  E.  822;    Boothby  v. 
Railroad  Co.,  90  Me.  313,  38  Atl.  155;   Johnson  v.  Railway  Co.,  7  N.  D.  284, 
75  X.  W.  250;    Seymour  v.  Railroad  Co.,  69  Vt.  555,  38  Atl.  236;    Smith  v. 
Railway  Co.,  90  Fed.  783.     But  the  federal  court  holds  that  a  railroad  is  liable 
to  a  bare  licensee  for  gross  negligence  only.     Cleveland,  C.,  C.  &  St.  L.  R.  Co. 
v.  Tartt,  12  C.  C.  A.  618,  64  Fed.  823. 

12  Davis  v.  Railway  Co.,  58  Wis.  646,  17  N.  W.  406;    Townley  v.  Railroad 
Co.,  53  Wis.  62G,  11  N.  W.  55. 

is  Delaney  v.  Railroad  Co.,  33  Wis.  67.  But  see  Matze  v.  Railroad  Co.,  1 
Hun  (X.  Y.)  417;  Hansen  v.  Railway  Co.,  105  Cal.  379,  38  Pac.  957. 

i*  Byrne  v.  Railroad  Co.,  104  N.  Y.  362,  10  N.  E.  539;  Swift  v.  Railroad  Co., 
123  X.  Y.  645,  25  X.  E.  378. 

15  Harrison  v.  Railroad  Co.,  29  L.  T.  (X.  S.)  844. 

IB  Matze  v.  Railroad  Co.,  1  Hun  (N.  Y.)  417;  Felton  v.  Aubrey,  20  C.  C.  A. 
436,  74  Fed.  350. 


328  DANGEROUS    INSTRUMENTALITIES.  (Ch.  8 

showing  the  very  least  degree  of  care,  falling  little  short  of  gross 
negligence.17 

134.  SIGNALS — Violation  of  statutes  requiring  the  giving 
of  certain  signals  is  generally  held  to  constitute 
negligence  per  se.1 

Tt  should  be  observed,  however,  that  the  mere  fact  of  omission 
to  give  certain  signals  required  by  statute  or  ordinance  is  not  con- 
clusive of  violation,  for  extenuating  circumstances  may  be  shown, 
which  would  relieve  the  company  from  the  penalty  imposed  by  the 
law,  thus  negativing  the  presumption  of  violation.2  Moreover,  to 
render  the  railroad  liable,  it  must  appear  that  the  injury  was  due 
to  such  failure  to  give  statutory  signals.3  The  mere  giving  of  statu- 
tory signals  does  not,  however,  in  all  cases  relieve  the  company  of 
liability, — as  in  the  case  of  an  injury  caused  by  running  a  train  at 
a  high  rate  of  speed  through  a  village;  4  and  the  question  of  rea- 

17  Roth  v.  Depot  Co.,  13  Wash.  525,  43  Pac.  641;  Mitchell  v.  Railroad  Co. 
(N.  H.)  34  Atl.  674;  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Cook,  13  C.  C.  A. 
364,  66  Fed.  115;  Thomas  v.  Railway  Co.,  93  Iowa,  248,  61  N.  W.  967. 

§  134.  i  Cordell  v.  Railroad  Co.,  64  N.  Y.  535;  Chicago  &  E.  I.  R.  Co.  v. 
Boggs,  101  Ind.  522;  Pennsylvania  R.  Co.  v.  Ogier,  35  Pa.  St.  60;  Chicago  & 
N.  E.  Ry.  Co.  v.  Miller,  46  Mich.  532,  9  N.  W.  841;  Prewitt  v.  Railway  Co., 
134  Mo.  615,  36  S.  W.  667;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Calvert,  11  Tex.  Civ. 
App.  297,  32  S.  W.  246.  Other  courts  have  merely  held  that  violation  of  the 
statute  was  some  evidence,  but  not  conclusive,  of  negligence.  Hanlon  v. 
Railroad  Co.,  129  Mass.  310;  Lamb  v.  Railway  Co.  (Mo.  Sup.)  48  S.  W.  659; 
Simons'  Adm'r  v.  Railway  Co.,  96  Va.  152,  31  S.  E.  7;  Walsh  v.  Railroad  Co., 
171  Mass.  52,  50  N.  E.  453;  Houston  &  T.  C.  R.  Co.  v.  Rogers  (Tex.  Civ.  App.) 
39  S.  W.  1112;  Hunter  v.  Railway  Co.  (Mont.)  57  Pac.  140;  Chicago,  St.  P., 
M.  &  O.  Ry.  Co.  v.  Brady,  51  Neb.  758,  71  N.  W.  721;  Missouri  Pac.  Ry.  Co. 
v.  Geist,  49  Neb.  489,  68  N.  W.  640. 

2  Hanlon  v.  Railroad  Co.,  129  Mass.  310;   Karle  v.  Railroad  Co.,  55  Mo.  476. 

»  Atchison,  T.  &  S.  F.  R.  Co.  v.  Morgan,  31  Kan.  77,  1  Pac.  298;  Chicago 
&  A.  R.  Co.  v.  Robinson,  106  111.  142;  Chicago,  B.  &  Q.  R.  Co.  v.  Harwood,  90 
111.  425;  Houston  &  T.  C.  R.  Co.  v.  Nixon,  52  Tex.  19;  Baltimore  &  O.  S.  W.  Ry. 
Co.  v.  Conoyer,  149  Ind.  524,  48  N.  E.  352;  Atlantic  &  D.  Ry.  Co.  v.  Rieger, 
95  Va.  418,  28  S.  E.  590. 

*  Thompson  v.  Railroad  Co.,  110  N.  Y.  636,  17  N.  E.  690;  Zimmer  v.  Railroad 
Co.,  7  Hun  (N.  Y.)  552.  In  the  following  cases  the  statutory  warning  was  held 
sufficient:  Lake  Shore  &  M.  S.  R.  Co.  v.  Elson,  15  111.  App.  80;  Chicago,  B. 
&  Q.  R.  Co.  v.  Dougherty,  110  111.  521. 


§  135)  CAKE  REQUIRED  OF  PERSONS.  329 

sonableness  and  sufficiency  of  the  signals  used  may  be  submitted 
to  the  jury.  And,  where  it  appeared  that  plaintiff  was  familiar 
with  the  custom  of  defendant  to  give  warning  of  the  approach  of 
trains,  evidence  was  held  admissible  that  at  the  time  of  the  acci- 
dent the  custom  was  not  followed.5  In  the  absence  of  a  statute 
imposing  upon  the  company  the  duty  of  giving  certain  signals  on 
approaching  crossings,  failure  to  give  signals  is  not,  per  se,  neg- 
ligence, and  in  such  cases  it  is  for  the  jury  to  determine  whether 
the  omission  is  negligent.6  In  the  absence  of  any  statute  govern- 
ing the  giving  of  signals,  the  question  of  reasonableness  and  suffi- 
ciency is  for  the  jury.7 

SAME— CARE  REQUIRED  OF  PERSONS. 

135.  It  is  the  duty  of  a  traveler  in  proximity  to  or  about 
to  cross  a  railroad  track  to  use  that  degree  of  care 
•which  a  person  of  ordinary  prudence  -would  exercise 
in  similar  circumstances.  This  rule  requires  of  one 
about  to  cross  a  railroad  that  he  should  look  and 
listen,  unless 

(a)  The  company,  through  its  servants  or  rules,  relieves 

him  of  the  precaution  by  assurances  of  safety,  or 

(b)  Local  conditions,  as  the  conformation  of  the  land  or 

obstructions  or  other  causes,  render  the  precaution 
useless,  or  unless 

(c)  By   reason   of  some   infirmity   or   incapacity   of  the 

traveler  the  usual  rule  is  abrogated  or  modified. 

The  duties  of  a  person  approaching  a  railroad  track  are  in  many 
respects  similar  to  those  of  the  company.  Neither  the  train  nor 
the  person  has  an  absolute  right  of  way,  regardless  of  the  rights 
of  the  other.  Each  must  be  governed  by  circumstances,  and  ob- 
serve that  degree  of  caution  wrhich  they  require.  When  a  collision 

s  Vandewater  v.  Railroad  Co.,  74  Hun,  32,  26  N.  Y.  Supp.  397.  Defendant 
aeld  liable  in  such  case  even  where  plaintiff  failed  to  exercise  ordinary  care. 
Chicago,  B.  &  Q.  R.  Co.  v.  Johnson,  53  111.  App.  478. 

e  Sauerborn  y.  Railroad  Co.,  69  Huu,  429.  23  N.  Y.  Supp.  478. 

7  Mitchell  v.  Railroad  Co.  (N.  H.)  34  Atl.  074. 


330  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

occurs  without  negligence  on  the  part  of  either  the  company  or  the 
traveler,  neither  will  be  heard  to  complain  of  the  other.1  It  is 
equally  evident  that  where  a  collision  results  from  the  mutual  fault 
of  both  parties  neither  will  have  a  right  of  action. 

The  way  traveler  should  always  exercise  a  degree  of  caution  pro- 
portioned to  the  danger,  and  this  rule  requires  that  on  approach- 
ing a  railroad  crossing  he  should  look  in  both  directions,  and  listen 
for  approaching  trains.2  And  it  is  probably  not  going  too  far  to 
hold  that  in  certain  cases  he  should  stop  before  going  on  the  cross- 
ing,3 or  even  get  down  from  his  wagon,  if  driving,  and  approach 
on  foot,  for  purposes  of  a  more  careful  survey.4  The  test  is  what 

§  135.  i  Cosgrove  v.  Railroad  Co.,  13  Hun  (N.  Y.)  329;  Rothe  v.  Railroad 
Co.,  21  Wis.  256;  Evansville  &  C.  R.  Co.  v.  Lowdermilk,  15  Ind.  120. 

2  Brown  v.  Railroad  Co.,  22  Minn.  165;  Stackus  v.  Railroad  Co.,  7  Hun  (N. 
Y.)  559;  Chicago  &  R.  I.  R.  Co.  v.  McKean,  40  111.  218;  Chicago,  R.  I.  &  P.  R. 
Co.  v.  Houston,  95  TJ.  S.  697;  Linfield  v.  Railroad  Co.,  10  Gush.  (Mass.)  562; 
Davis  v.  Railroad  Co.,  47  N.  Y.  400;  Weber  v.  Railroad  Co.,  58  N.  Y.  451; 
Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Stephens,  13  Ind.  App.  145,  40  N.  B.  148; 
Sprow  v.  Railroad  Co.,  163  Mass.  330,  39  N.  E.  1024;  Gulf,  C.  &  S.  F.  Ry. 
Co.  v.  Scott  (Tex.  Civ.  App.)  27  S.  W.  827;  Philadelphia  &  R.  R.  Co.  v.  Peebles, 
14  C.  C.  A.  555,  67  Fed.  591;  Baltimore  &  O.  R.  Co.  v.  Griffith,  159  U.  S. 
603,  16  Sup.  Ct.  105;  Smith  v.  Railroad  Co.,  87  Me.  339,  32  Atl.  967;  Vree- 
land  v.  Railroad  Co.,  109  Mich.  585,  67  N.  W.  905;  Howe  v.  Railroad  Co.,  62 
Minn.  71,  64  N.  W.  102;  Judson  v.  Railway  Co.,  63  Minn.  248,  65  N.  W.  447; 
struck  by  a  closely  following  car  (for  jury),  Bowen  v.  Railroad  Co.,  89  Him,  594, 
35  N.  Y.  Supp.  540;  Collins  v.  Railroad  Co.,  92  Hun,  563,  36  N.  Y.  Supp.  942; 
Davidson  v.  Railroad  Co.,  171  Pa.  St.  522,  33  Atl.  86;  Martin  v.  Railroad  Co., 
176  Pa.  St.  444,  35  Atl.  183;  Cleveland,  C.,  C.  &  St.  L.  Ry.  Co.  v.  Miller,  149 
Ind.  90,  49  N.  E.  445;  Little  Rock  &  F.  S.  Ry.  Co.  v.  Blewett  (Ark.)  45  S.  W. 
548;  Chicago,  B.  &  Q.  R.  Co.  v.  Thorson,  68  111.  App.  288;  Mayes  v.  Railroad 
Co.,  71  Mo.  App.  140;  Northern  Pac.  R.  Co.  v.  Freeman,  174  U.  S.  379,  19  Sup. 
Ct.  763;  Muscarro  v.  Railroad  Co.  (Pa.  Sup.)  43  Atl.  527;  Conkling  v.  Railroad 
Co.  (N.  J.  Err.  &  App.)  43  Atl.  666;  Jencks  v.  Railroad  Co.,  33  App.  Div.  635, 
53  N.  Y.  Supp.  623;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Holland  (Kan.  Sup.)  56 
Pac.  6. 

s  Pennsylvania  Canal  Co.  v.  Bentley,  66  Pa.  St.  30;  Wilds  v.  Railroad  Co., 
29  N.  Y.  315,  328;  Nelson  v.  Railroad  Co.  (Minn.)  78  N.  W.  1041;  Ritzman  v. 
Railroad  Co.,  187  Pa.  St.  337,  40  Atl.  975;  Decker  v.  Railroad  Co.,  181  Pa.  St. 
465,  37  Atl.  570.  But  see  Judson  v.  Railroad  Co.,  158  N.  Y.  597,  53  N.  E.  514. 
Burden  of  proof,  Steele  v.  Railway  Co.  (Wash.)  57  Pac.  820;  Manley  v.  Canal 
Co.,  69  Vt.  101,  37  Atl.  279. 

*  Pennsylvania  R.  Co.  v.  Beale,  73  Pa.  St.  504. 


§  135)  CARE  REQUIRED  OF  PERSONS.  831 

would  be  expected  of  a  person  of  ordinary  prudence  in  similar  cir- 
cumstances.5 

It  not  infrequently  happens  that  a  view  of  the  track  may  be  ob- 
tained from  some  particular  point  only  on  the  highway,  more  or  less 
remote  from  the  crossing.  In  such  case  it  is  not  conclusive  of  negli- 
gence that  the  traveler  did  not  look  at  the  one  open  point  of  view, 
but  the  question  of  negligence  is  for  the  jury  to  determine  in  the 
circumstances.6  It  is  otherwise  if  the  view  is,  in  general,  open  and 
unobstructed  for  a  short  distance  only,  close  to  the  track.7  It  is 
not  requisite  that  the  person  should  take  every  possible  precaution, 
and  it  is  error  to  charge  that  it  is  the  duty  of  the  person  "to  look 
and  listen  at  all  points"  on  approaching  a  crossing.8  In  Bellefon- 
taine  Kailway  Co.  v.  Hunter,9  Eay,  C.  J.,  thus  defines  the  mutual 
duties  of  the  traveler  and  the  company:  "In  the  case-  before  us 
each  party  had  a  right  of  passage,  limited  by  that  maxim  of  equity, 
'Sic  utere  tuo  ut  alienum  non  laedas.'  Upon  each  rested  the  obliga- 
tion, in  the  exercise  of  this  right,  to  use  such  reasonable  degree  of 
foresight,  skill,  capacity,  and  care  as  would  be  consistent  with  a 
proper  regard  for  the  safety  of  all  others  exercising  the  same  right 
and  using  the  like  precautions.  We  do  not  say  that  such  care  must 
be  used  by  each  as  would  prevent  the  possibility  of  injury  to  himself 
or  another.  There  are  inevitable  accidents.  But  such  care  is  re- 
quired as  would  reasonably,  and  under  all  ordinary  circumstances, 
avoid  collision  with  one  using  like  caution, — such  care  as  a  prudent 
man,  in  the  exercise  of  his  usual  diligence,  will  observe.  It  is  true 
that  prudent  men  are  sometimes  careless.  When  so,  they  must 
accept  the  consequences  of  their  departure  from  their  usual  line  of 

e  McNown  v.  Railroad  Co.,  55  Mo.  App.  585;  Baker  v.  Railroad  Co.  (Mo. 
Sup.)  48  S.  W.  838. 

«  Massoth  v.  Canal  Co.,  64  N.  Y.  524.  See,  also,  Pepper  v.  Southern  Pac. 
Co.,  105  Cal.  389,  38  Pac.  974;  Cleveland,  C.,  C.  &  St.  L.  R.  Co.  v.  Smith,  78 
m.  App.  429;  White  v.  Southern  Pac.  Co.  (Cal.)  54  Pac.  956;  Central  R.  Co. 
v.  Smalley  (N.  J.  Err.  &  App.)  39  Atl.  695;  Tilton  v.  Railroad  Co.,  169  Mass. 
253,  47  N.  E.  998. 

T  Campbell's  Adm'r  v.  Railroad  Co.  (Va.)  21  S.  E.  480;  Atchison,  T.  &  S.  F. 
R.  Co.  v.  Holland  (Kan,  Sup.)  56  Pac.  6;  Stewart  v.  Railroad  Co.  (Mich.) 
77  N.  W.  643. 

s  Winey  v.  Railway  Co..  92  Iowa,  622,  61  N.  W.  218* 

»  33  Ind.  335,  at  page  305. 


332  DANGEROUS    INSTRUMENTALITIKS.  (Ch.   8 

conduct,  and  the  exception  is  not  to  mark  the  amount  of  care  exacted 
by  the  law." 

136.  FAILURE  TO  GIVE  SIGNALS— Failure  on  the  part 
of  the  company  to  give  customary  or  statutory 
signals  does  not  relieve  a  person  approaching  an 
unobstructed  crossing  from  the  duty  to  look  and 
listen. 

"Where  a  person  knowingly  about  to  cross  a  railroad  track  may 
have  an  unobstructed  view  of  the  railroad,  so  as  to  know  of  the 
approach  of  a  train  a  sufficient  time  to  clearly  avoid  any  injury  from 
it,  he  cannot,  as  a  matter  of  law,  recover,  although  the  railroad  com- 
pany may  have  been  also  negligent,  or  have  neglected  to  perform 
a  statutory  requirement." J  This  rule  has  been  slightly  modified 
in  a  few  carefully  considered  cases  to  the  extent  of  holding,  where 
the  railroad  company  fails  to  give  statutory  signals,  one  is  not  de- 
barred from  recovery  by  reason  of  being  incautiously  or  imprudently 
on  the  tracks,  provided  he  keeps  a  proper  lookout.2  The  great 

§  136.  i  Artz  v.  Railroad  Co.,  34  Iowa,  153.  See,  also,  Ernst  v.  Railroad 
Co.,  39  N.  Y.  61;  Baxter  v.  Railroad  Co.,  41  N.  Y.  502;  Nicholson  v.  Railway 
Co.,  Id.  525;  Morris  &  E.  R.  Co.  v.  Haslan,  33  N.  J.  Law,  147;  Chicago  &  A. 
R.  Co.  v.  Fears,  53  111.  115;  Toledo  &  W.  Ry.  Co.  v.  Goddard,  25  Ind.  185; 
Cleveland,  C.  &  C.  R.  Co.  v.  Terry,  8  Ohio  St.  570;  North  Pennsylvania  R. 
Co.  v.  Heileman,  49  Pa.  St.  60;  Parker  v.  Adams,  12  Mete.  (Mass.)  415; 
Gangawer  v.  Railroad  Co.,  168  Pa.  St.  265,  32  Atl.  21;  Caldwell  v.  Railroad  Co., 
58  Mo.  App.  453;  Johnson's  Adm'r  v.  Railway  Co.,  91  Va.  171,  21  S.  E.  238; 
Conkling  v.  Railroad  Co.  (N.  J.  Err.  &  App.)  43  Atl.  666;  Baker  v.  Rail- 
road Co.  (Mo.  Sup.)  48  S.  W.  838;  Blackburn  v.  Pacific  Co.  (Or.)  55  Pac.  225; 
Walsh  v.  Railroad  Co.,  171  Mass.  52,  50  N.  E.  453;  Gulf,  C.  &  S.  V.  Ry.  Co.  v. 
Hamilton  (Tex.  Civ.  App.)  42  S.  W.  358;  Rangeley's  Adm'r  v.  Railway  Co., 
95  Va.  715,  30  S.  E.  386;  Severy  v.  Railway  Co.,  6  Okl.  153,  50  Pac.  162;  Schnei- 
der v.  Railway  Co.,  99  Wis.  378.  75  N.  W.  169;  Mesic  v.  Railroad  Co.,  120  N.  C. 
489,  26  S.  E.  633.  Traveler  cannot  rely  solely  on  custom  to  have  flagman  at 
crossing.  Smith  v.  Railroad  Co.,  141  Ind.  92,  40  N.  E.  270. 

2  Baltimore  &  O.  R.  Co.  v.  State,  33  Md.  542.  And  see  Cliff  v.  Railroad 
Co.,  L.  R.  5  Q.  B.  258;  Baltimore  &  O.  S.  W.  Ry.  Co.  v.  Conoyer,  149  Ind.  524, 
48  N.  E.  352.  The  extreme  opposite  view  holds  it  to  be  negligence  per  se  to 
go  on  the  track  in  front  of  an  approaching  train,  notwithstanding  precautions 
of  stopping,  looking,  and  listening.  Sheehan  v.  Railroad  Co.,  166  Pa.  St.  354, 
31  Atl.  120. 


§    137)  ASSURANCE    OF    SAFETY    BY    AGENTS.  333 

weight  of  American  authority  is,  however,  opposed  to  even  this 
slight  modification  of  the  rule.  Yet  the  rule  as  laid  down  is  not 
absolutely  inflexible,  being  governed  to  some  extent  by  circum- 
stances; as  if  a  person  actuated  by  fright,  and  to  escape  from  a 
runaway  team,  should,  without  preliminary  caution,  run  upon  the 
tracks.3  And  if  one,  having  wTith  due  caution  come  upon  a  cross- 
ing where  the  tracks  are  numerous,  is  confused  by  the  smoke  and 
noise  of  passing  trains,  and  is  injured  by  a  train  coming  from  an 
opposite  direction,  and  which  he  failed  to  observe,  although  he 
might  have  done  so  had  he  looked,  the  question  of  his  negligence 
may  be  submitted  to  the  jury.4 

137.  ASSURANCE  OF  SAFETY  BY  AGENTS— If  the  pos- 
itive acts  or  omissions  of  the  agents  of  the  company 
are  such  as  -would  lead  an  ordinarily  prudent  person 
to  believe  that  a  safe  crossing  was  afforded,  the 
traveler  may  be  justified  in  omitting  some  or  all  of 
the  ordinary  precautions.1 

Thus,  where  defendant's  flagman,  stationed  at  a  crossing,  signaled 
to  plaintiff  to  cross,  and  he  did  so,  looking  straight  ahead,  and 
was  injured  by  an  approaching  train,  it  was  held  that  he  could  re- 
cover.2 So,  also,  where  a  tacit  assurance  of  safety  was  extended 
to  plaintiff  by  leaving  the  gate  open.3  And  where  plaintiff  at- 
tempted to  cross  on  seeing  the  gate  raised,  and  was  injured,  al- 
though he  might  have  seen  the  train,  the  court  said:  "The  raising 

»  Moore  v.  Railroad  Co.,  47  Iowa,  688;  Pratt  v.  Railway  Co.,  107  Iowa,  287, 
77  X.  W.  1064. 

*  Greany  v.  Railroad  Co.,  101  N.  Y.  419,  5  N.  E.  425;  Haycroft  v.  Railroad 
Co.,  64  N.  Y.  636.  But  see  Purdy  v.  Railroad  Co.,  87  Hun,  97,  33  N.  Y. 
Supp.  952. 

§  137.  i  Chaffee  v.  Railroad  Corp.,  104  Mass.  108;  Wheelock  v.  Railroad 
Co.,  105  Mass.  203;  Clark  v.  Railroad  Co.,  164  Mass.  434,  41  N.  E.  666; 
Steel  v.  Railway  Co.,  107  Mich.  516,  65  N.  W.  573;  Waldele  v.  Railroad  Co., 
4  App.  Div.  549,  38  N.  Y.  Supp.  1009;  Chicago  &  A.  R.  Co.  v.  Blaul,  70  111. 
App.  518. 

2  Sweeny  v.  Railroad  Co.,  10  Allen  (Mass.)  368. 

a  Palmer  v.  Railroad  Co.,  112  N.  Y.  234,  19  N.  E.  678;  Oldenburg  v.  Railroad 
Co.,  124  N.  Y.  414,  26  X.  E.  1021;  Walsh  v.  Railroad  Co.,  171  Mass.  52,  50 
N.  E.  453;  Chicago  &  A,  R.  Co.  v.  Redmond,  70  111.  App.  119. 


334  DANGEROUS   INSTRUMENTALITIES.  (Ch.  8 

of  the  gate  was  substantial  assurance  to  him  of  safety,  just  as  sig- 
nificant as  if  the  gateman  had  beckoned  to  him,  or  invited  him  to 
come  on,  and  that  any  prudent  man  would  not  be  influenced  by  it 
is  against  all  human  experience.  The  conduct  of  the  gateman  can- 
not be  ignored  in  passing  upon  plaintiff's  conduct,  and  it  was  prop- 
erly to  be  considered  by  the  jury  with  all  the  other  circumstances 
of  the  case."  * 

138.  OBSTRUCTED  VIEW— If  the  view  of  one  approach- 
ing a  crossing  in  a  vehicle  is  obstructed  by  natural 
or  artificial  causes,  he  is  not  necessarily  negligent 
if  he  does  not  alight,  and  go  forward  on  foot,  to 
determine  the  safety  of  the  crossing.1 

And  where,  in  similar  circumstances,  he  approaches  the  crossing 
on  foot,  it  is  not  per  se  negligence  if  he  does  not  stop,  but  is  for  the 
jury.2  The  rule  of  ordinary  care  is  in  no  degree  abated  by  these 
decisions,  but  is  rather  exemplified.  When  obstructions  intercept 
the  view,  the  danger  is  increased,  and  the  traveler  should  approach 
with  increased  caution.  If  he  cannot  see,  he  should  listen  the  more 
intently.8  And,  if  the  conditions  are  such  that  he  can  neither  see 

*  Glushing  v.  Sharp,  96  N.  Y.  676.  See,  also,  Lindeman  v.  Railroad  Co.,  42 
Hun  (N.  Y.)  306.  Per  contra,  Denver  &  R.  G.  R.  Co.  v.  Gustafson,  21  Colo.  393, 
41  Pac.  505.  Plaintiff,  at  the  invitation  of  agent,  attempted  to  cross  at  a 
dangeroiis  place.  Warren  v.  Railroad  Co.,  8  Allen  (Mass.)  227.  But  compare 
Hickey  v.  Railroad  Co.,  14  Allen  (Mass.)  429,  where  permission  to  do  a  negli- 
gent act  is  distinguished  from  an  invitation.  An  invitation  to  cross  by  a 
flagman  or  other  agent  does  not,  however,  entirely  relieve  the  traveler  from 
the  duty  of  ordinary  care,  and  it  cannot  be  held,  as  matter  of  law,  that  one 
acting  on  such  an  invitation  is,  ipso  facto,  free  from  negligence.  Chicago,  B. 
&  Q.  R.  Co.  v.  Spring,  13  111.  App.  174. 

§  138.  i  Mackay  v.  Railroad  Co.,  35  N.  Y.  75;  Dolan  v.  Canal  Co.,  71  N.  Y. 
285;  Kellogg  v.  Railroad  Co.,  79  N.  Y.  72;  Southern  Ry.  Co.  v.  Prather  (Ala.) 
24  South.  836;  Houston  &  T.  C.  R.  Co.  v.  Pereira  (Tex.  Civ.  App.)  45  S.  W. 
767. 

2  Link  v.  Railroad  Co.,  165  Pa.  St.  75.  30  Atl.  820;  Northern  Pac.  R.  Co.  v. 
Austin,  12  C.  C.  A.  97,  64  Fed.  211;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Anthony, 
12  Ind.  App.  126,  38  N.  E.  831;  Hubbard  v.  Railroad  Co.,  162  Mass.  132,  38 
N.  E.  366;  Whalen  v.  Railroad  Co.,  58  Hun,  431,  12  N.  Y.  Supp.  527,  distin- 
guishing Kellogg  v.  Railroad  Co.,  79  N.  Y.  72. 

a  Hoffmann  v.  Railroad  Co.,  67  Hun,  581,  22  N.  Y.  Supp.  463;    Beisiegel  v. 


§    138)  OBSTRUCTED    VIEW.  335 

nor  hear,  ordinary  care  requires  that  he  should  stop,  and  it  is  neg- 
ligence not  to  do  so.4 

Where  a  crossing  is  obstructed  for  an  unreasonable  length  of 
time  by  cars  standing  on  the  track,  there  is  good  authority  for  hold- 
ing that  it  is  not  negligence  for  the  foot  traveler  to  pass  over  the 
cars,5  or  between  them  if  separated; 6  but,  in  any  event,  he  must  use 
ordinary  care,  and  not  needlessly  incur  danger, — as  when  one  at- 
tempted to  cross  between  two  cars  by  putting  a  foot  on  either  side 
of  the  pin  head,  wrhere  they  would  necessarily  be  caught  if  the  train 
moved.7  Other  courts  have  held  that  any  attempt  to  cross  by  pass- 
ing between  or  over  the  cars  is  negligence  which  will  prevent  a  re- 
covery.8 

It  is  not  quite  clear  why  a  person  about  to  cross  a  railroad  should 
be  permitted  to  relax  his  vigilance  in  any  degree  by  reason  of  the 
fact  that  a  train  has  just  passed,  yet  some  decisions  embody  this 
holding.8 

Railroad  Co.,  34  N.  Y.  622;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Williams,  59  Kan. 
700,  54  Pac.  1047;  Stewart  v.  Railroad  Co.  (Mich.)  77  N.  W.  643;  Keppleman 
v.  Railway  Co.  (Pa.  Sup.)  42  Atl.  697;  Central  R.  Go.  of  New  Jersey  v.  Smalley 
(N.  J.  Err.  &  App.)  39  Atl.  695.  Attempt  not  negligence  when  view  obstructed 
by  smoke  of  train  which  has  just  passed.  Chicago  &  N.  W.  Ry.  Co.  v.  Hansen, 
106  111.  623,  46  N.  E.  1071.  Contra,  Manley  v.  Railroad  Co.,  18  App.  Div.  420, 
45  N.  Y.  Supp.  1108;  Hoveuden  v.  Railroad  Co.,  ISO  Pa.  St.  244,  36  Atl.  731. 
Where  plaintiff  heard  whistle,  but  drove  on,  hoping  to  cross  in  time,  he  could 
not  recover.  Pennsylvania  Co.  v.  Morel,  40  Ohio  St.  338. 

*  Flemming  v.  Railroad  Co.,  49  Cal.  253,  where  the  rattling  of  plaintiff's 
wagon  prevented  his  hearing  and  the  dust  prevented  seeing. 

sRauch  v.  Lloyd,  31  Pa.  St.  358;  Phillips  v.  Railroad  Co.,  80  Hun,  404, 
30  N.  Y.  Supp.  333;  Weber  v.  Railroad  Co.,  54  Kan.  389,  38  Pac.  569;  San 
Antonio  &  A.  P.  Ry.  Co.  v.  Bergsland,  12  Tex.  Civ.  App.  97,  34  S.  W.  155. 

6  Baltimore  &  O.  R.  Co.  v.  Fitzpatrick,  35  Md.  32.  But  see  Lewis  v.  Railroad 
Co.,  38  Md.  588;  Mahar  v.  Railway  Co.,  19  Hun  (N.  Y.)  32;  Lake  Erie  &  W. 
R.  Co.  v.  Mackey,  53  Ohio  St.  370,  41  N.  E.  980. 

T  Hudson  v.  Railway  Co.,  123  Mo.  445,  27  S.  W.  717. 

s  Stillson  v.  Railroad  Co.,  67  Mo.  071;  Gahagan  v.  Railroad  Co.,  1  Allen 
(Mass.)  187;  O'Mara  v.  Canal  Co.,  18  Hun  (N.  Y.)  192.  But  see  Phillips  v. 
Railroad  Co.,  80  Hun,  404,  30  X.  Y.  Supp.  333.  Traveler  held  negligent  in 
climbing  over  bumpers,  although  using  great  care.  Magoon  v.  Railroad  Co.,  67 
Vt  177,  31  Atl.  150;  Wherry  v.  Railway  Co.,  64  Minn.  415,  67  N.  W.  223. 

»  Greany  v.  Railroad  Co.,  101  N.  Y.  419,  5  N.  E.  425;  McXamara  v.  Railroad 
Co.,  136  X.  Y.  650,  32  N.  E.  075;  Xorthrup  v.  Railway  Co.,  37  Hun  (X.  Y.) 
295;  Beckwith  v.  Railroad  Co.,  54  Hun,  446,  7  N.  Y.  Supp.  719,  721;  Gray  v. 


336  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

139.  INFIRM  TRAVELERS— Although  the  exercise  of  or- 
dinary care  is  required  of  those  -who  are  physically 
infirm  by  reason  of  age  or  other-wise,  yet  the  stand- 
ard by  -which  that  degree  of  care  must  be  measured 
is  somewhat  relaxed,  and  must  conform  to  -what 
•would  reasonably  be  expected  from  persons  of  that 
particular  age  or  physical  condition.1 

"The  old,  the  lame,  and  infirm  are  entitled  to  the  use  of  the 
streets,  and  more  care  must  be  exercised  towards  them  by  engineers 
than  towards  those  who  have  better  powers  of  motion.  The  young 
are  entitled  to  the  same  rights,  and  cannot  be  required  to  exercise 
as  great  foresight  and  vigilance  as  those  of  maturer  years."  2  But 
those  persons  who  are  afflicted  with  deafness,3  or  imperfect  vision,4 
being  aware  of  their  infirmities,  should  take  added  precautions  in 
approaching  places  of  unusual  danger,  such  as  railroad  crossings. 

Railroad  Co.,  172  Pa.  St.  383,  33  Atl.  697;  Bowen  v.  Railroad  Co.,  89  Hun, 
594,  35  N.  Y.  Supp.  540;  Baker  v.  Railroad  Co.  (Mo.  Sup.)  48  S.  W.  838;  Pin- 
ney  v.  Railway  Co.,  71  Mo.  App.  577. 

§  139.  i  Elkins  v.  Railroad  Co.,  115  Mass.  190;  Costello  v.  Railroad  Co.,  65 
Barb.  (N.  Y.)  92;  Philadelphia  &  R.  R.  Co.  v.  Spearen,  47  Pa.  St.  300;  Chicago 
&  A.  R.  Co.  v.  Becker,  84  111.  483;  McGovern  v.  Railroad  Co.,  67  N.  Y.  417; 
Paducah  &  M.  R.  Co.  v.  Hoehl,  12  Bush  vKy.)  41;  Haas  v.  Railroad  Co.,  41 
Wis.  44;  deafness,  New  York,  N.  H.  &  H.  R.  Co.  v.  Blessing,  14  C.  C.  A.  394, 
67  Fed.  277. 

2  O'Mara  v.  Railroad  Co.,  38  N.  Y.  445;  Allen  v.  Railway  Co.,  106  Iowa,  602, 
76  N.  W.  848;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Ohlsson,  70  111.  App.  487;  Smeltz 
v.  Railroad  Co.,  186  Pa.  St  364,  40  Atl.  479;  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Cross,  58  Kan.  424,  49  Pac.  599;  Cariner  v.  Railway  Co.,  95  Wis.  513,  70  N. 
W.  560. 

s  Illinois  Cent.  R.  Co.  v.  Buckner,  28  111.  299;  Cleveland,  C.  &  C.  R.  Co.  v. 
Terry,  8  Ohio  St.  570;  Ormsbee  v.  Railroad  Corp.,  14  R.  I.  102;  Central  R.  Co. 
v.  Feller,  84  Pa.  St.  226;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Pounds,  27  C.  C.  A. 
112,  82  Fed.  217;  Phillips  v.  Railway  Co.,  Ill  Mich.  274,  69  N.  W.  496. 

*  Peach  v.  City  of  Utica,  10  Hun  (N.  Y.)  477;  Sleeper  v.  Sandown,  52  N.  H. 
244;  Davenport  v.  Ruckman,  37  N.  Y.  568;  Winn  v.  City  of  Lowell,  1  Allen 
(Mass.)  177. 


§    140)  CONTRIBUTORY    NEGLIGKNCE.  337 

140.  CONTRIBUTORY  NEGLIGENCE  —  Failure  of  the 
traveler  to  use  ordinary  care,  within  the  foregoing 
definition,  -when  approaching  a  railroad  crossing, 
or  otherwise  coining  into  proximity  with  railroad 
tracks,  constitutes  contributory  negligence  which 
will  prevent  a  recovery,  provided  the  omission  was 
the  proximate  cause  of  the  injury.1 

When  it  appears  that,  in  the  existing  conditions,  the  ordinary 
precautions,  such  as  looking  and  listening,  would  have  been  use- 
less, their  omission  is  not  negligence  which  will  prejudice  plaintiff's 
right  to  recover.2  Thus,  where  two  trains  were  approaching  one 
another  at  a  crossing,  the  one  carrying  a  headlight,  and  making 
much  noise,  and  the  other  approaching  in  comparative  quiet,  without 
any  light,  and  the  traveler  was  struck  and  killed  by  the  latter,  it 
was  held  that,  as  it  would  have  been  useless  for  deceased  to  have 

§  140.  i  Duvall  v.  Railroad  Co.,  105  Mich.  386,  63  N.  W.  437;  Smith  v. 
Railroad  Co.,  141  Ind.  92,  40  X.  E.  270;  Bates  v.  Railroad  Co.,  84  Hun,  287,  32 
X.  Y.  Supp.  337;  eveii  if  railroad  is  also  negligent,  Louisville,  N.  A.  &  C.  Ry. 
Co.  v.  Stephens,  13  Ind.  App.  145,  40  N.  E.  148;  and  he  cannot  recover  even  if 
the  crossing  is  improperly  constructed,  Tobias  v.  Railroad  Co.,  103  Mich.  330, 
ill  X.  W.  514.  See,  also,  Sheehan  v.  Railroad  Co.,  166  Pa,  St.  354,  31  Atl.  120; 
Miller  v.  Railroad  Co.,  81  Hun,  152,  30  N.  Y.  Supp.  751;  Xelson  v.  Railroad 
Co.,  88  Wis.  392,  60  X.  W.  703.  In  the  following  cases  the  question  was  held 
properly  submitted  to  the  jury:  Link  v.  Railroad  Co.,  165  Pa.  St.  75,  30  Atl. 
820;  Connerton  v.  Canal  Co.,  168  Pa.  St.  339,  32  Atl.  416;  Wilcox  v.  Railroad 
Co.,  88  Hun,  263,  34  X.  Y.  Supp.  744;  Crosby  v.  Railroad  Co.,  88  Hun,  196, 
34  X.  Y.  Supp.  714;  New  York,  X.  H.  &  H.  R.  Co.  v.  Blessing,  14  C.  C. 
A.  394,  67  Fed.  277;  Miles  v.  Railroad  Co.,  86  H«n,  508,  33  N.  Y.  Supp. 
729;  Meddaugh  v.  Railway  Co.,  86  Hun,  620,  33  X.  Y.  Supp.  793;  Cincinnati, 
X.  O.  &  T.  P.  Ry.  Co.  v.  Farra,  13  C.  C.  A.  602,  66  Fed.  496;  Smith  v.  Railroad 
Co.  (Ky.)  30  S.  W.  209;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Anthony,  12  Ind.  App. 
12C,  38  X.  E.  831;  Hubbard  v.  Railroad  Co.,  162  Mass.  132,  38  X.  E.  366; 
Struck  v.  Railway  Co.,  58  Minn.  298,  59  N.  W.  1022;  Lynch  v.  Railroad  Co.,  16 
C.  C.  A.  151,  69  Fed.  86;  Howe  v.  Railroad  Co.,  62  Minn.  71,  64  X.  W.  102. 

2  Struck  v.  Railway  Co.,  58  Minn.  298,  59  N.  W.  1022;  Texas  &  P.  Ry.  Co. 
v.  Xeill  (Tex.  Civ.  App.)  30  S.  W.  369;  Smedis  v.  Railroad  Co.,  88  N.  Y.  13; 
Judson  v.  Railway  Co.,  63  Minn.  248,  65  X.  W.  447;  Philadelphia  &  R.  R.  Co. 
v.  Peebles,  14  C.  C.  A.  555,  67  Fed.  591;  Derk  v.  Railway  Co.,  164  Pa.  St.  243, 
30  Atl.  231;  Reeves  v.  Railroad  Co.,  92  Iowa,  32,  60  X.  W.  243;  Jensen  v. 
Railroad  Co.,  102  Mich.  176,  60  X.  W.  57;  Pepper  v.  Railroad  Co.,  105  Gal.  389, 
38  Pac.  974;  Sprow  v.  Railroad  Co.,  163  Mass.  330,  39  X.  E.  1024. 
BAR.XEG.— 22 


338  DANGEROUS    INSTRUMENTALITIES.    ,  (Cll.   8 

looked  and  listened  for  the  latter  train,  his  attention  being  pre- 
sumptively engrossed  with  the  former,  his  omission  to  do  so  was 
immaterial,  and  therefore  no  assumption  to  that  effect  could  be 
based  on  the  evidence.8 

Effect  on  Statutory  Liability. 

Where  the  failure  of  railroad  companies  is,  by  statute,  made  neg- 
ligence per  se,  the  right  of  recovery  by  the  traveler,  notwithstand- 
ing contributory  negligence,  is  not  thereby  changed.*  Statutes  of 
this  kind  have  the  effect  merely  of  establishing  in  certain  cases  the 
negligence  of  the  railroad,5  but  they  cannot  be  construed  to  relieve 
the  traveler  of  the  duty  of  exercising  ordinary  care.8 

Contributory  Negligence  not  Conclusive  against  Plaintiff. 

Neither  is  the  fact  of  plaintiff's  contributory  negligence  conclu- 
sive against  his  right  to  recover  in  all  cases.7  If  the  plaintiff's  own 
negligence  exposes  him  to  injury,  he  may  yet  recover  if  defendant's 
failure  to  use  ordinary  care,  after  discovering  his  danger,  was  the 

»  Smedis  v.  Railroad  Co.,  88  N.  Y.  13. 

*  Daseomb  v.  Railroad  Co.,  27  Barb.  (N.  Y.)  221;  Chicago,  R.  I.  &  P.  Ry. 
Co.  v.  Kennedy,  2  Kan.  App.  693,  43  Pac.  802;  Central  Texas  &  N.  W.  Ry. 
Co.  v.  Nycum  (Tex.  Civ.  App.)  34  S.  W.  460;  Miller  v.  Railroad  Co.,  144  Ind. 
323,  43  N.  E.  257;  Judson  v.  Radlway  Co.,  63  Minn.  248,  65  N.  W.  447;  Collins 
v.  Railroad  Co.,  92  Hun,  563,  36  X.  Y.  Supp.  942;  Steinhofel  v.  Railway  Co.,  92 
Wis.  123,  65  N.  W.  852;  Alabama  G.  S.  R.  Co.  v.  Anderson,  109  Ala.  299,  19 
South.  516.  But  see  Lloyd  v.  Railway  Co.,  128  Mo.  595,  29  S.  W.  153,  and  31 
S.  W.  110. 

s  Shirk  v.  Railroad  Co.,  14  Ind.  App.  126,  42  N.  E.  656;  Pittsburg,  C.,  C. 
&  St.  L.  Ry.  Co.  v.  Shaw,  15  Ind.  App.  173,  43  N.  E.  957;  Texas  &  P.  Ry.  Co. 
r.  Brown,  11  Tex.  Civ.  App.  503,  33  S.  W.  146;  Chicago,  M.  &  St.  P.  R.  Co.  v. 
Walsh,  157  111.  672,  41  N.  E.  900. 

6  Baltimore  &  O.  R.  Co.  v.  Talmage,  15  Ind.  App.  203,  43  N.  E.  1019;  Collins 
v.  Railroad  Co.,  92  Hun,  563,  36  N.  Y.  Supp.  942;  Texas  &  P.  Ry.  Co.  v.  Cody, 
166  U.  S.  606,  17  Sup.  Ct.  703;  Comer  v.  Shaw,  98  Ga,  543,  25  S.  E.  733;  Pay  lie 
v.  Railroad  Co.,  136  Mo.  502.  38  S.  W.  308. 

T  Davies  v.  Mann,  10  Mees.  &  W.  546;  Green  v.  Railroad  Co.,  11  Hun  (N.  Y.) 
333;  Cleveland.  C.,  C.  &  I.  R.  Co.  v.  Elliott,  28  Ohio  St.  340;  Trow  v.  Rail- 
road Co.,  24  Vt.  487;  Isbell  v.  Railroad  Co.,  27  Conn.  393;  Lovett  v.  Salern  & 
S.  D.  R.  Co.,  9  Allen  (Mass.)  557;  Underwood  v.  Waldron,  33  Mich.  232;  Lane 
v.  Atlantic  Works,  107  Mass.  104;  Illinois  Cent  R.  Co.  v.  Hoffman.  67  111.  287; 
Donaldson  v.  Railroad  Co.,  21  Minn.  293;  Kuhn  v.  Railroad  Co.,  42  Iowa,  420; 
Wright  v.  Brown,  4  Ind.  95;  Tuff  v.  Warman,  5  C.  B.  (N.  S.)  573. 


§  140)  CONTRIBUTORY  NEGLIGENCE.  339 

proximate  cause  of  the  injury.8  Thus,  where  one  was  walking  be- 
tween the  double  tracks  of  a  railroad,  with  an  umbrella  over  her 
head,  and  was  visible  at  a  long  distance,  and  those  in  charge  of  the 
train  made  no  effort  to  avoid  injury  after  they  saw  her  peril,  the 
case  was  for  the  jury.9  In  an  earlier  case  the  court  said:  "Though 
the  deceased  may  have  incautiously  gotten  upon  the  track  of  de- 
fendant's road,  yet,  if  he  could  not,  at  the  time  of  the  collision,  by^ 
the  exercise  of  ordinary  care,  have  avoided  the  consequences  of  the 
defendant's  negligence,  assuming  that  there  were  such,  the  right  to- 
recover  exists.10 

Presumptions. 

It  by  no  means  follows  as  a  presumption  that  the  omission  of 
that  which  is  beneficial  in  its  object  is  harmful.  Thus,  an  engineer 
may,  contrary  to  custom  and  the  dictates  of  prudence,  fail  to  ring; 
the  bell  on  approaching  a  crossing,  but  the  traveler  may,  neverthe- 
less, have  been  fully  warned  in  other  ways  of  the  approach  of  the 
train,  and  in  such  case  the  company  could  not  be  held  responsible 
for  the  failure  to  give  the  customary  signals.11  On  the  other  hand, 
in  certain  circumstances,  there  is  a  presumption  that,  had  the  cus- 
tomary or  proper  signal  been  given,  its  warning  would  have  been 
heeded,  and  the  injury  avoided.  "The  very  object  of  requiring  the 
engineer  to  sound  an  alarm  before  reaching  the  crossing  is  to  put 
the  way  traveler  on  his  guard,  and  when  the  engineer  neglects  the- 
necessary  signals  he  deprives  the  traveler  of  one  of  the  means 
upon  which  he  has  a  right  to  rely  for  protection  against  the  danger 

»  Chamberlain  v.  Railway  Co.,  133  Mo.  Sup.  587,  33  S.  W.  437,  and  34  S.  W. 
842;  Pickett  v.  Railroad  Co.,  117  X.  C.  616,  23  S.  E.  264;  Chaffee  v.  Railroad 
Co.  (R.  I.)  35  Atl.  47;  Comer  v.  Barfield,  102  Ga.  485,  31  S.  E.  89;  Texas  Mid- 
land R.  Co.  v.  Tidwell  (Tex.  Civ.  App.)  49  S.  W.  641;  Baltimore  &  O.  R.  Co.  v. 
Anderson,  29  C.  C.  A.  235,  87  Fed.  413;  Norton  v.  Railroad  Co.,  122  N.  C. 
910,  29  S.  E.  886;  Pittsburg,  C.,  C.  &  St.  L.  Ry.  Co.  v.  Lewis  (Ky.)  38  S.  W. 
482;  Western  Maryland  R.  Co.  v.  Kehoe,  86  Md.  43,  37  Atl.  799;  Dlauhi  v.  Rail- 
way Co.,  139  Mo.  291,  40  S.  W.  890;  Baltimore  &  O.  R.  Co.  V.  Few's  Ex'rs, 
94  Va.  82,  26  S.  E.  406. 

»  Kreis  v.  Railway  Co.,  131  Mo.  533,  33  S.  W.  64. 

10  Northern  Cent.  Ry.  Co.  v.  State,  29  Md.  420. 

11  Dascomb  v.  Railroad  Co.,  27  Barb.  (N.  Y.)  221;    Steves  v.  Railroad  Co., 
18  N.  Y.  422.     Knowledge  of  danger.     Douglas  v.  Railway  Co.,  100  Wis.  405, 
76  N.  W.  356. 


340  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

of  collision."  12  But  the  burden  of  proving  that  the  injury  resulted 
from  the  failure  to  give  the  signal  has  been  held  to  be  on  the  plain- 
tiff.13 Where  there  are  no  obstructions  to  the  view,  and  the  in- 
jured person  was  of  good  eyesight,  it  is  a  warranted  presumption 
that  he  did  not  look  and  listen.14  And,  where  no  negligence  is 
shown  on  the  part  of  the  railroad  company,  no  presumption  will  be 
raised  that  the  deceased  took  ordinary  precautions  to  avoid  the 
accident.15  But,  in  the  absence  of  any  evidence  to  the  contrary, 
there  is  generally  a  presumption  that  a  person  approaching  a  dan- 
gerous place  exercised  ordinary  care.16  When  the  traveler  has  a 
fair  view  of  the  train,  and  the  usual  or  statutory  signals  are  made 
to  give  warning  of  its  approach,  the  company's  servants  have  gener- 
ally the  right  to  presume  that  they  will  be  observed.17 

SAME— COLLISION  WITH  ANIMALS. 

141.  Where  the  common  law  regarding  fences  is  in  force, 
cattle  running  at  large  and  coming  upon  railroad 
property  are  trespassers,  and  the  company  is  not 
responsible  for  their  injury,1  unless 

12  Beisiegel  v.  Railroad  Co.,  34  N.  Y.  622.  Presumption  of  safety  of  crossing 
from  absence  of  flagman.  Martin  v.  Railroad  Co.  (Del.  Super.)  42  Atl.  442; 
Chicago  &  A.  R.  Co.  v.  Blaul,  175  111.  183,  51  N.  E.  895. 

is  Galena  &  C.  TL  R.  Co.  v.  Loomis,  13  111.  548. 

i*  Kelsay  v.  Railway  Co.,  129  Mo.  Sup.  362,  30  S.  W.  339;  Tobias  v.  Rail- 
way Co.,  103  Mich.  330,  61  fc.  W.  514;  Seamans  v.  Railroad  Co.,  174  Pa.  St. 
421,  34  Atl.  568;  Schofield  v.  Railway  Co.,  114  U.  S.  615,  5  Sup.  Ct.  1125; 
Lesan  v.  Railroad  Co.,  77  Me.  85;  Wilcox  v.  Railroad  Co.,  39  N.  Y.  358. 

isLivermore  v.  Railroad  Co.,  163  Mass.  132,  39  N.  E.  789.  Per  contra, 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Hinds,  56  Kan.  758,  44  Pac.  993;  Reynolds 
v.  Railroad  Co.,  58  N.  Y.  248. 

is  Huntress  v.  Railroad  Co.,  66  N.  H.  185,  34  Atl.  154;  Haverstick  v.  Rail- 
road Co.,  171  Pa.  St.  101,  32  Atl.  1128;  Missouri  Pac.  Ry.  Co.  v.  Moffatt 
(Kan.  Sup.)  55  Pac.  837;  Louisville  &  N.  R.  Co.  v.  Clark's  Adm'r  (Ky.)  49  S. 
W.  323;  Chesapeake  &  O.  Ry.  Co.  v.  Steele,  29  C.  C.  A.  81,  84  Fed.  93; 
Houston  &  T.  C.  R.  Co.  v.  Laskowski  (Tex.  Civ.  App.)  47  S.  W.  59. 

IT  St.  Louis,  A.  &  T.  H.  R.  Co.  v.  Manly,  58  111.  300;  Chicago.  B.  &  Q. 
R.  Co.  v.  Harwood,  80  111.  88;  Chicago,  B.  &  Q.  R.  Co.  v.  Damerell,  81  111. 
450. 

§  141.  i  Munger  v.  Railroad  Co.,  4  N.  Y.  349;  Cot-win  v.  Railroad  Co., 
13  N.  Y.  42;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Stuart,  71  Ind.  500;  Vauhoru 


§    141)  COLLISION    WITH    ANIMALS.  341 

(a)  The  injury  is  caused  by  the  willful  or  wanton  act  of 

the  company,  or  unless 

(b)  The  injury  is  due  to  the  failure   of  the   company  to 

use   ordinary   care    after  discovering  the  presence 
of  the  cattle  on  the  track. 

Under  the  common  law  there  was  no  obligation  resting  upon 
landowners  to  so  fence  or  guard  their  property  that  cattle  could 
not  enter  upon  it,  but,  on  the  contrary,  the  owners  of  cattle  were 
required  to  keep  them  from  straying  off  their  lands.2  In  those 
states,  therefore,  which  have  retained  this  feature  of  the  common 
law.3  cattle  become  trespassers  when  they  go  upon  the  property  of 
a  railroad,*  and  it  is  immaterial  whether  it  happens  through  the 
negligence  of  their  owners  or  not,5  provided  it  does  not  occur 
through  the  negligent  or  wrongful  act  of  the  company,  such  as 
breaking  dowyn  the  fence  which  inclosed  them.  In  such  an  event 
the  railroad  would,  of  course,  be  liable  if  they  escaped  through  the 
breach  thus  made,  and  wandered  upon  the  track,  and  were  injured.0 
But  even  those  states  which  still  adhere  to  the  common  law  regard- 
ing fences  in  general  have,  in  many  instances,  indirectly  modified 
it  by  statutory  enactments  requiring  railroads  to  fence  their  right 
of  way  or  tracks.  Subject  to  the  modifications  hereinafter  made, 
however,  the  proposition  holds  good  that,  where  cattle  are  tres- 
passers upon  railroad  property,  the  company  is  not  responsible  for 
their  injury.7 

v.  Railway  Co.,  63  Iowa,  G7,  18  N.  W.  679;  Eames  v.  Railroad  Co.,  98  Mass. 
560;  Maynard  v.  Railroad  Co.,  115  Mass.  458;  Pittsburgh,  Ft  W.  &  C. 
Ry.  Co.  v.  Methven,  21  Ohio  St.  586;  Moser  v.  Railroad  Co.,  42  Minn.  480, 
44  N.  W.  530;  New  York  &  E.  R.  Co.  v.  Skinner,  19  Pa.  St  298;  Johnson 
v.  Railway  Co.,  43  Minn.  207,  45  N.  W.  152;  North  Pennsylvania  R.  Co.  v. 
Rehman,  49  Pa.  St.  101. 

2  Wiseman  v.  Booker,  3  C.  P.  Div.  184;  Dawson  v.  Railroad  Co.,  L.  R, 
8  Exch.  8;  Buxton  v.  Railroad  Co.,  L.  R.  3  Q.  B.  549;  Manchester,  S.  &  L,. 
R.  Co.  v.  Wallis,  14  C.  B.  213. 

s  Wright  v.  Railroad  Co.,  IS  Ind.  168. 

*  Munger  v.  Railroad  Co.,  4  N.  Y.  349,  affirmed  in  5  Denio  (N.  Y.)  255. 

s  North  Pennsylvania  R.  Co.  v.  Rehman,  49  Pa.  St.  101;  Munger  v.  Rail- 
road Co.,  4  N.  Y.  349,  affirmed  in  5  Denio  (N.  Y.)  255;  Corwin  v.  Railroad  Co., 
13  N.  Y.  42;  Spinner  v.  Railroad  Co.,  67  N.  Y.  153. 

e  Wright  v.  Railroad  Co.,  18  Ind.  168. 

7  See  cases  cited  under  section  141,  note  1,  supra. 


342  DANGEROUS    INSTRUMENTALITIES.  (Cll.   8 

142.  WANTON  OR  WILLFUL  INJURY— In  no  event  is 
the  railroad  justified  in  wantonly  or  willfully  in- 
juring animals  upon  its  right  of  way. 

The  foregoing  rule  is  evidently  subject  to  the  modification  which 
governs  all  branches  of  negligence  that  one  may  not  intentionally 
or  wantonly  inflict  injury  on  another  or  on  his  property;  hence 
there  are  few,  if  any,  states  where  a  railroad  is  not  liable  for  in- 
juries wantonly  or  willfully  inflicted,  even  on  trespassing  animals.1 
And  the  weight  of  authority  holds  that,  if  the  engineer  could  have 
escaped  the  collision  by  the  exercise  of  that  degree  of  care  and 
diligence  which  an  ordinarily  prudent  person  of  his  vocation  would 
use  in  similar  circumstances,  the  company  cannot  avoid  liability 
•on  the  ground  that  the  cattle  were  trespassers.2  And,  if  the  com- 
pany exercises  ordinary  care  after  a  timely  discovery  of  the  ani- 
mals on  the  track,  it  is  not,  in  the  absence  of  special  statute,  liable 
for  their  injuries.3  What  is  ordinary  care  in  the  circumstances  is 
nearly  always  a  question  for  the  jury,  and  the  mere  fact  that  the 
engineer  did  not  take  some  particular  precaution — such  as  slacken- 
ing the  speed  of  the  train  on  discovering  the  animals  on  the  track 
— is  not  necessarily  negligence.*  In  some  states,  however, — espe- 
cially in  the  Eastern, — the  interpretation  that  is  given  to  "ordinary 
care"  is  so  broad  that  railroad  companies  have  been  practically  re- 

§  142.  i  Missouri,  K.  &  T.  Ry.  Co.  v.  Meithvein  (Tex.  Civ.  App.)  33  S.  W. 
1093;  Magilton  v.  Railroad  Co.,  S2  Hun,  308,  31  N.  Y.  Supp.  241. 

2  Eames  v.  Railroad  Co.,  08  Mass.  560;  Toledo,  P.  &  W.  R.  Co.  v.  Bray, 
57  111.  514;  Perkins  v.  Railroad  Co.,  29  Me.  307;  Towns  v.  Railroad  Co., 
.21  N.  H.  364;  Locke  v.  Railroad  Co.,  15  Minn.  351  (Gil.  283);  Parker  v.  Rail- 
road Co.,  34  Iowa,  399;  Louisville  &  N.  R.  Co.  v.  Wainscott,  3  Bush  (Ky.) 
149;  Cincinnati  &  Z.  R.  Co.  v.  Smith,  22  Ohio  St.  227;  Needham  v.  Railroad 
Co.,  37  Cal.  409;  Bemis  v.  Railroad  Co.,  42  Vt  375;  Isbell  v.  Railroad  Co., 
27  Conn.  393;  Pearson  v.  Railroad  Co.,  45  Iowa,  497;  Chicago  &  N.  W.  R. 
Co.  v.  Barrie,  55  111.  226;  Omaha  &  R.  V.  Ry.  Co.  v.  Wright,  47  Xeb.  886, 
<66  N.  W.  842;  Lake  Erie  &  W.  R.  Co.  v.  Norris,  60  Dl.  App.  112. 

s  Barnhart  v.  Railway  Co.,  97  Iowa,  654,  66  N.  W.  902;  McGhee  v.  Gaines, 
98  Ky.  182,  32  S.  W.  602;  Lovejoy  v.  Railway  Co.,  41  W.  Va.  693,  24  S. 
E.  599. 

*  Warren  v.  Railway  Co.,  59  Mo.  App.  367,  1  Mo.  App.  Rep'r,  37;  Scott 
v.  Railroad  Co.,  72  Miss.  37,  16  South.  205;  Granby  v.  Railroad  Co.,  104 
Mich.  403,  62  N.  W.  579. 


§    143)  CARE    AFTER    DISCOVERY.  343 

lieved  of  responsibility  for  all  injuries  to  trespassing  animals,8  while 
others  hold  squarely  that,  when  animals  are  wrongfully  on  the  track, 
and  the  company  has  neglected  no  duty  imposed  by  statute,  it  need 
not  exercise  usual  or  ordinary  care  to  avoid  injuring  them.8  A 
few  states  have  held  that,  if  the  stock  escape  without  fault  on  the 
owner's  part, — as  by  the  negligence  of  an  adjoining  owner, — and 
stray  onto  the  track,  and  are  injured,  the  company  must  show  itself 
free  from  negligence  in  order  to  escape  liability.1 

143.  CARE  AFTER  DISCOVERY— Even  if  animals  are 
•wrongfully  on  the  track,  it  is  the  duty  of  the  rail- 
road company,  after  discovering  them,  to  use  ordi- 
nary care  to  avoid  doing  them  injury. 

It  is  a  generally  accepted  rule  in  nearly  all  states,  whether  cattle 
be  lawfully  on  the  track  or  not,  that,  after  they  are  seen,  or,  in  the 
exercise  of  ordinary  care,  should  be  seen,  by  those  in  charge  of  the 
train,  ordinary  care  and  diligence  should  be  observed  to  prevent 
injuring  them.1  It  should  be  observed  in  this  connection,  however, 

e  Darling  -v.  Railroad  Co.,  121  Mass.  118;  Maynard  v.  Railroad  Co.,  115 
Mass.  458;  Boyle  v.  Railroad  Co.,  39  Hun  (N.  Y.)  171;  Price  v.  Railroad 
Co.,  31  N.  J.  Law,  229;  McCandless  v.  Railroad  Co.,  45  Wis.  365;  Delta 
Electric  Co.  v.  Whitcamp,  58  111.  App.  141. 

e  Simmons  v.  Railway  Co.,  2  App.  Div.  117,  37  N.  Y.  532. 

7  Marietta  &  C.  R.  Co.  v.  Stephenson,  24  Ohio  St.  48;  Bulkley  v.  Railroad 
Co.,  27  Conn.  479;  Moriarty  v.  Railway  Co.,  64  Iowa,  696,  21  N.  W.  143; 
Pearson  v.  Railroad  Co.,  45  Iowa,  497;  Doran  v.  Raihvay  Co.,  73  Iowa,  115, 
34  N.  W.  619;  Trout  v.  Railroad  Co.,  23  Grat.  (Va.)  619. 

§  143.  i  Lafayette  &  I.  R.  Co.  v.  Shriner,  6  Ind.  141;  Illinois  Cent.  R, 
Co.  v.  Phelps,  29  111.  447;  Cincinnati  &  Z.  R.  Co.  v.  Smith,  22  Ohio  St. 
227;  Jackson  v.  Railroad  Co.,  25  Vt  150;  Pritchard  v.  Railroad  Co.,  7  Wis. 
232;  Isbell  v.  Railroad  Co.,  27  Conn.  393;  Williams  v.  Railroad  Co.,  2  Mich. 
239;  Bowman  v.  Railroad  Co.,  37  Barb.  (N.  Y.)  516;  Delta  Electric  Co.  v. 
White-amp,  58  111.  App.  141;  Omaha  &  R,  V.  Ry.  Co.  v.  Wright,  47  Neb. 
886,  66  N.  W.  842;  St  Louis,  A.  &  T.  H.  R.  Co.  v.  Stapp,  53  111.  App.  600; 
Warren  v.  Railway  Co.,  59  Mo.  App.  367,  1  Mo.  App.  Rep'r,  37;  Denver 
&  R.  G.  R.  Co.  v.  Nye,  9  Colo.  App.  94,  47  Pac.  654;  Mooers  v.  Railroad  Co., 
69  Minn.  90,  71  N.  W.  905;  Chicago  &  N.  W.  Ry.  Co.  v.  Smedley,  65  111.  App. 
644;  Beattyville  &  C.  G.  R.  Co.  v.  Maloney  (Ky.)  49  S.  W.  545;  Louisville 
&  N.  R.  Co.  v.  Brinckerhoff  (Ala.)  24  South.  892. 


344  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

that  the  primary  duty  of  the  railroad  is  to  care  for  the  safety  of  its 
passengers,  and  in  those  cases  where  cattle  are  not  observed  until 
it  is  too  late  to  stop  the  train,  and  a  collision  appears  unavoidable, 
it  may  be  justifiable  to  increase,  rather  than  diminish,  the  speed 
of  the  train,  as  the  latter  course  might  result  in  its  derailment.2 

There  is  a  difference  of  opinion  as  to  what  degree  of  diligence 
satisfies  the  requirement  of  ordinary  care  in  looking  out  for  and 
seeing  trespassing  cattle.3  In  some  states  it  is  held  that  those  in 
charge  of  the  train  should  use  greater  diligence  in  this  regard  when 
the  probability  of  meeting  straying  cattle  is  great,*  and  that  they 
are  bound  to  see  cattle  when  the  view  is  unobstructed  for  a  consid- 
erable distance,  and  the  cattle  do  not  jump  suddenly  onto  the  track.5 
It  would  seem  that  no  reasonable  objection  could  be  raised  to  the 
rule  last  stated,  and,  since  ordinary  care  for  the  safety  of  the  train 
requires  a  vigilant  outlook  for  obstacles  on  the  track,  it  is  difficult 
to  understand  why,  in  all  cases,  those  in  charge  of  the  train  should 
not  be  held  bound  to  see  cattle  upon  the  track,  whose  presence  was 
discoverable  in  the  exercise  of  ordinary  care. 

2  Cleveland  v.  Railroad  Co.,  35  Iowa,  220;  Owens  v.  Railroad  Co.,  58 
Mo.  386;  O'Connor  v.  Railroad  Co.,  27  Minn.  166,  6  N.  W.  481;  Parker  v. 
Railroad  Co.,  34  Iowa,  399;  Bellefontaine  &  I.  R.  Co.  v.  Schruyliart,  10  Ohio 
St.  116;  Eemis  v.  Railroad  Co.,  42  Vt.  375;  Louisville  &  A.  R.  Co.  v.  Bal- 
lard,  2  Mete.  (Ky.)  177;  East  Tennessee,  V.  &  G.  R.  Co.  v.  Selcer,  7  Lea 
(Tenn.)  557. 

s  Chicago  &  N.  W.  R.  Co.  v.  Barrie,  55  111.  226;  Jones  v.  Railroad  Co..  70 
N.  C.  626;  Harrison  v.  Railway  Co.,  6  S.  D.  100,  60  N.  W.  405;  Louisville 
&  N.  R.  Co.  v.  Boweu  (Ky.)  39  S.  W.  31. 

*  Campbell  v.  Railway  Co.,  59  Mo.  App.  151,  1  Mo.  App.  Rep'r,  3;  St.  Louis 
S.  W.  Ry.  Co.  v.  Russell,  64  Ark.  236,  41  S.  W.  807;  Chattanooga  S.  R.  Co.  v. 
Daniel  (Ala.)  25  South.  197. 

8  Kean  v.  Chenault  (Ky.)  41  S.  W.  24;  Yazoo  &  M.  V.  R.  Co.  v.  Whitting- 
ton,  74  Miss.  410,  21  South.  249.  Thus,  where  cattle  were  observable  for  half 
a  mile,  Chicago  &  N.  W.  R.  Co.  v.  Barrie,  55  111.  226;  or  where  a  horse 
runs  for  200  yards  in  front  of  a  train,  Jones  v.  Railroad  Co.,  70  N.  C.  626; 
but  where  a  cow  jumped  suddenly  onto  the  track,  200  yards  ahead  of  the 
train,  and  the  engineer  used  every  means  to  stop  the  train,  the  company 
was  held  not  liable.  Proctor  v.  Railroad  Co.,  72  N.  C.  579.  See,  also,  Ala- 
bama G.  S.  R.  Co.  v.  McAlpine,  75  Ala.  113. 


§    144)  FENCES.  345 

144.  FENCES — Although  cattle  upon  the  tracks  of  the  rail- 
road company  may  be  illegally  at  large,  yet  the 
company  will  be  liable  for  their  injury  if  it  has 
omitted  to  perform  a  statutory  duty  regarding  fen- 
cing or  guards,  and  the  cattle  become  trespassers  by 
reason  of  such  omission.1 

Statutory  Duty. 

But  if,  in  such  case,  the  negligence  of  the  owner  contributes  to 
the  injury,  his  right  of  recovery  may  be  thereby  defeated.2  Gen- 
erally the  question  of  negligence  on  the  part  of  the  railroad  com- 
pany does  not  arise  where  there  has  been  an  omission  of  its  statu- 
tory duty  to  build  and  maintain  fences.3  The  liability  in  such  cases 
is  absolute.  But  if  it  should  appear  that  the  presence  of  the  cattle 
on  the  track  was  not  due  to  the  omission  to  fence,  no  recovery  can 
be  had  against  the  company,  unless  negligence  is  shown.  If  the 
company  has  fulfilled  its  duty  in  building  fences,  the  further  re- 
quirement to  maintain  them  is  satisfied  by  an  exercise  of  ordinary 
care.4  Hence  if  cattle  should  enter  upon  the  tracks  through  a 
breach  made  by  a  freshet  or  an  unusually  strong  wind,  and  suffer 
injury  by  collision,  the  company  could  successfully  defend  by  show- 
ing that  the  fence  was  properly  built,  and  that  a  reasonable  time 

§  144.  i  Rogers  v.  Railroad  Co.,  1  Allen  (Mass.)  16;  McGhee  v.  Guyn 
(Ky.)  32  S.  W.  G15;  Lake  Erie  &  W.  R.  Co.  v.  Beam,  60  111.  App.  68;  Conolly 
v.  Railroad  Co.,  4  App.  Div.  221,  38  N.  Y.  Supp.  587;  Vanduzer  v.  Railway 
Co.,  58  X.  J.  Law,  8.  32  Atl.  376;  Spinner  v.  Railroad  Co.,  67  N.  Y.  153;  Patrie 
v.  Railroad  Co.  (Idaho)  56  Pac.  S2. 

2  Hill  Y.  Railroad  Co.,  67  X.  H.  449,  32  Atl.  766.     See  "Contributory  Neg- 
ligence," post,  pp.  346-348. 

3  Corwin  v.  Railroad  Co.,  13  N.  Y.  42;    Gorman  v.  Railroad  Co.,  26  Mo.  441; 
Gillam  Y.  Railroad  Co.,  26  Minn.  2GS,  3  X.  W.  353;    Kelver  Y.  Railroad  Co., 
126  X.  Y.  365,  27  X.  E.  553;   Smith  Y.  Railroad  Co.,  35  N.  H.  356;    Indianapolis 
&  C.  R.  Co.  Y.  Townsend,  10  Ind.  38;    Veerhusen  v.  Railway  Co.,  53  Wis.  689, 
11  X.  W.  433;    Fraysher  Y.  Railway  Co.,  66  Mo.  App.  573;    Connolly  v.  Rail- 
road Co..  158  X.  Y.  675,  52  X.  E.  1124. 

*  Toledo  &  C.  S.  Ry.  Co.  Y.  Eder,  45  Mich.  329,  7  X.  W.  898;  Case  v. 
Railroad  Co.,  75  Mo.  668;  Chicago  &  X.  W.  R.  Co.  Y.  Barrie,  55  111.  226; 
Lemmon  Y.  Railroad  Co.,  32  Iowa,  151.  Burden  on  plaintiff  where  impossible 
to  build  fences.  Texas  &  P.  Ry.  Co.  v.  Scrivener  (Tex.  Civ.  App.)  49  S.  W. 
049. 


-346  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

had  not  been  afforded  to  ascertain  and  repair  the  break.8  The  rule 
lias  been  thus  stated:  "After  fences  have  once  been  erected  as  re- 
quired by  law,  the  company  is  only  liable  for  a  negligent  failure 
to  maintain  such  fences,  and  it  is  therefore  entitled  to  a  reasonable 
time  in  which  to  make  repairs,  after  having  knowledge  of  a  defect 
therein,  or  after  that  period  has  elapsed  in  which,  by  the  exercise 
of  reasonable  diligence,  it  could  have  had  knowledge  of  such  de- 
fect." 6  But  the  company  must  use  diligence  in  making  seasonable 
repairs,7  and  the  lapse  of  sufficient  time  to  afford  reasonable  oppor- 
tunity to  inspect  will  charge  the  company  with  knowledge  of  the 
•defect.8 
Sufficient  Fences  and  Guards. 

What  constitutes  a  sufficient  fence  or  guard  varies  in  different 
states  according  to  the  statutes  and  the  decisions  of  the  courts. 
In  all  states  fences  must  be  sufficiently  strong  and  high  to  restrain 
horses  and  cattle,  and  in  some  they  must  be  sufficient  to  keep  hogs 
and  sheep  from  pushing  through.9  In  every  case  the  fence  must  be 
substantial  enough  to  keep  out  the  strongest,  and  even  vicious,  ani- 
mals; 10  but  not,  necessarily,  frightened  or  stampeded  animals.11 
And,  if  a  guard  is  ordinarily  sufficient,  the  fact  that  in  a  particular 
instance  cattle  succeeded  in  passing  it  will  not  render  the  company 
liable.12 
Contributory  Negligence. 

The  fact  that  cattle  are  running  at  large  in  violation  of  the  law 
is  not  generally  sufficient  to  charge  the  owner  with  contributory 

B  Hodge  v.  Railroad  Co.,  27  Hun  (N.  Y.)  394. 

«  Clardy  v.  Railroad  Co.,  73  Mo.  57G;    Shear.  &  R.  Neg.  §  459. 

7  Brady  v.  Railroad  Co.,  1  Hun  (N.  Y.)  378;  Spinner  v.  Railroad  Co.,  67 
N.  Y.  153;  Chicago  &  N.  W.  R.  Co.  v.  Harris,  54  111.  528;  Peirce  v.  Radder- 
man,  77  111.  App.  619.  And  it  is  immaterial  that  the  breach  has  been  wrong- 
fully made.  Munch  v.  Railroad  Co.,  29  Barb.  (N.  Y.)  647. 

s  Corwin  v.  Railroad  Co.,  13  N.  Y.  42;  Ohio  &  M.  R.  Co.  v.  Clutter,  82 
111.  123. 

»  Lee  v.  Railway  Co.,  66  Iowa,  131,  23  N.  W.  299;  Missouri  Pac.  Ry.  Co.  v. 
Bradshaw,  33  Kan.  533,  6  Pac.  917;  ISew  York,  C.  &  St.  L.  Ry.  Co.  v.  Zurn- 
'baugh,  17  Ind.  App.  171,  46  N.  E.  548.  Gates  must  be  strongly  constructed, 
.Hill  v.  Railway  Co.,  66  Mo.  App.  184. 

10  Cincinnati,  H.  &  I.  R.  Co.  v.  Jones,  111  Ind.  259,  12  N.  E.  113. 

11  Chicago  &  A.  R.  Co.  v.  Utley,  38  111.  410. 

12  Jones  v.  Railway  Co.,  59  Mo.  App.  137. 


§  144  FENCES.  347 

negligence,18  but  turning  stock  loose  on  the  highway  adjoining  un- 
fenced  depot  grounds/4  or  with  knowledge  that  cattle  guards  were 
insufficient,  and  that  stock  had  repeatedly  passed  over  them  onto 
the  tracks,18  is  contributory  negligence  sufficient  to  defeat  a  recov- 
ery. But  where  fences  were  necessarily  down  during  a  repair  of 
the  roadway  near  a  railroad  crossing,  and  a  boy  left  cows  in  an 
open  lot  near  by,  and  they  strayed  onto  the  track,  and  were  in- 
jured, the  railroad  was  liable.18  And  in  a  majority  of  cases  where 
injuries  are  caused  to  cattle  through  the  failure  of  the  railroad  to 
perform  its  statutory  duty  of  fencing,  the  contributory  negligence  of 
the  owner  in  permitting  them  to  stray  upon  the  tracks,  even  though 
they  may  be  unlawfully  at  large,  does  not  constitute  a  defense.17 
If  the  owner  of  cattle  has  a  right  to  use  land  adjoining  a  railroad, 
he  cannot  be  debarred  from  that  use  by  the  failure  of  the  com- 
pany to  fence  its  tracks,  and  may  recover  from  the  company  for 
injuries  inflicted  by  it  upon  his  stock,  although  he  turned  them  loose 
with  full  knowledge  of  the  existing  conditions.18  And  if,  in  the 
above  circumstances,  the  cattle  escaped  onto  the  track  through  an 
insufficient  fence,  built  by  the  owner  himself,  either  for  his  own 
convenience  or  by  contract  with  the  railroad  company,  the  owner 
would  not  be  barred  from  recovery.19  But  failure  of  the  owner  or 
custodian  occupying  land  adjacent  to  a  railroad  to  keep  gates  at 

is  Atchison,  T.  &,  S.  F.  R.  Co.  v.  Cupello,  61  111.  App.  432. 

i*  Schneekloth  v.  Railway  Co..  108  Mich.  1,  65  N.  W.  663. 

is  La  Flamme  v.  Railway  Co.,  109  Mich.  509,  67  N.  W.  556.  But  see  Gulf, 
C.  &  S.  F.  Ry.  Co.  v.  Cash,  8  Tex.  Civ.  App.  569,  28  S.  W.  387. 

is  Brady  v.  Railroad  Co.,  1  Hun  (N.  Y.)  378.  See,  also,  Flint  &  P.  M. 
Ry.  Co.  v.  Lull,  28  Mich.  510;  Indianapolis  &  C.  R.  Co.  v.  Parker,  29  Ind.  471. 

IT  Corwin  v.  Railroad  Co.,  13  N.  Y.  42;  Shepard  v.  Railroad  Co.,  35  N.  Y.  641; 
Anderson  v.  Railway  Co.,  93  Iowa,  561,  61  N.  W.  1058;  Wabash  R.  Co. 
v.  Perbex,  57  111.  App.  62;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Cupello,  61  111.  App. 
432;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Wessendorf  (Tex.  Civ.  App.)  39  S.  W. 
132;  Missouri,  K.  &  T.  Ry.  Co.  v.  Bellows  (Tex.  Civ.  App.)  39  S.  W.  1000; 
Chicago  &  E.  I.  R.  Co.  v.  Blair,  75  111.  App.  659. 

is  Gardner  v.  Smith,  7  Mich.  410;  Shepard  v.  Railroad  Co.,  35  N.  Y.  641; 
Wilder  v.  Railroad  Co.,  65  Me.  332;  Kuhn  v.  Railroad  Co.,  42  Iowa,  420; 
Cleveland,  C.,  C.  &  I.  R.  Co.  v.  Scudder,  40  Ohio  St.  173;  Gulf,  C.  &  S.  F. 
Ry.  Co.  v.  Cash,  8  Tex.  Civ.  App.  569,  28  S.  W.  387. 

is  Illinois  Cent.  R.  Co.  v.  Swearingeu,  33  111.  289;  Xorris  v.  Railroad  Co.. 
-39  Me.  273. 


348  DANGEROUS    INSTRUMENTALITIES.  (Cfa.    8- 

farm  crossings  closed,  will  preclude  recovery  for  consequent  inju- 
ries to  his  cattle.20 

The  negligence  of  the  owner  may  be  of  such  a  character  as  to 
amount  to  a  willful  exposure  of  his  cattle  to  injury.  In  such  case 
the  owner's  conduct  is  equivalent  to  an  abandonment,  and  there 
can  be  no  recovery,  "for  the  legislature  cannot  be  presumed  to  have 
intended  that  one  who  abandons  his  property  shall  nevertheless  re- 
cover its  value."  21 

Cattle  not  Trespassers. 

Where  animals  are  rightfully  on  the  track  of  a  railroad,  the  lat- 
ter is  liable  to  the  owner  for  injuries  caused  by  its  negligence;  that 
is,  the  company  is  responsible  for  its  failure  to  use  ordinary  care.2* 
Cattle  are  rightfully  upon  a  railroad  when  crossing  it  on  highways 
under  care  of  a  proper  custodian,23  or,  having  escaped  from  the  con- 
trol of  their  custodian,  who  is  using  all  proper  diligence  for  their  re- 
capture, have  continued  on  or  come  upon  its  tracks.24 

FIRES. 

145.  The  common  law  of  England  imposed  liability  upon 
the  originator  of  a  fire  irrespective  of  negligence, 
but  it  has  been  uniformly  held  in  the  United  States 
that  he  who  permits  a  fire  to  start  upon  his  own 
land  is  liable  for  injurious  consequences  to  another's 

20  Ranney  v.  Railroad  Co.,  59  111.  App.  130.  And  see  Indianapolis,  P.  & 
C.  R.  Co.  v.  Shinier,  17  Ind.  295;  Illinois  Cent.  R.  Co.  v.  McKee,  43  111.  119; 
Pittsburg,  C.  &  St.  L.  Ry.  Co.  v.  Smith,  26  Ohio  St.  124;  Lake  Erie  &  W. 
R.  Co.  v.  Welsel,  55  Ohio  St.  155,  44  N.  B.  923;  Harding  v.  Railroad  Co., 
100  Iowa,  677,  69  N.  W.  1019. 

2iWelty  v.  Railroad  Co.,  105  Ind.  55,  4  N.  E.  410.  And  see  Bunnell  v. 
Railway  Co.,  13  Utah,  314,  44  Pac.  927;  McCann  v.  Railway  Co.,  96  Wis. 
664,  71  N.  W.  1054;  Case  v.  Railroad  Co.,  59  N.  J.  Law,  471,  37  Atl.  65. 

22  Fritz  v.  RailroaJ  Co.,  22  Minn.  404;    Lane  v.  Railroad  Co.,  31  Kan.  525, 
3  Pac.  341. 

23  Lane  v.  Railroad  Co.,  31  Kan.  525,  3  Pac.  341;    White  v.  Railroad  Co., 
30  N.  H.  188. 

24  Louisville  &  N.  R.  Co.  v.  Williams,  105  Ala.  379,  16  South.  795;    Tona- 
wanda  R.  Co.  v.  Munger,  5  Denio  (N.  Y.)  255. 


§    146)  IXTKXTIOXAI.    FIRES.  349 

property  only  when  he  has  been  guilty  of  negli- 
gence, either  in  permitting  the  fire  to  start  or  in 
extinguishing  it. 

Negligence  the  Gist  of  the  Liability. 

At  common  law  a  person  using  dangerous  instrumentalities  acts 
at  his  peril,  and  is  responsible  for  any  damages  not  caused  by  ex- 
traordinary natural  consequences,  or  by  the  intervention  of  stran- 
gers;1 and  it  was  well  settled  that  one  who  kindled  a  fire,  either 
in  his  house  or  in  his  field,  must  see  that  it  did  no  harm,  or  answer 
for  damages  done,2 — that  is,  irrespective  of  negligence  or  interven- 
ing agencies,  the  originator  of  the  fire  must  answer  in  damages  for 
injurious  results.  Such  has  never  been  the  law  in  this  country, 
the  decisions  being  uniform  that  negligence  or  misconduct  is  the 
gist  of  the  liability.3  Nor  does  the  destruction  of  property  by  fire 
raise  any  presumption  of  negligence,  except,  in  some  states,  in  the 
case  of  railroad  fires.* 

SAME— INTENTIONAL  FIRES. 

146.  A  person  may  intentionally  set  out  a  fire,  for  a  legit- 
imate purpose,  without  becoming  responsible  for 
damage  caused  thereby,  provided  he  uses  ordinary 
care  in  the  circumstances. 

It  follows  that  one  may  set  fire  to  his  own  land,  whether  tim- 
ber, grass,  or  stubble,  for  a  legitimate  purpose, — such  as  to  clear 
or  otherwise  improve  it, — without  incurring  liability  for  injurious 
consequences  to  adjoining  owners,  provided  he  uses  ordinary  care 

§  145.     i  Fletcher  v.  Rylands,  L.  R.  1  Exch.  265,  279. 

2  Tubervil  v.  Stamp,  1  Salk.  13. 

s  Clark  v.  Foot,  8  Johns.  (X.  Y.)  421;  Bachelder  v.  Heagan,  18  Me.  32; 
Stuart  v.  Hawley,  22  Barb.  (X.  Y.)  619;  Barnard  v.  Poor,  21  Pick.  (Mass.) 
378;  Dewey  v.  Leonard,  14  Minn.  153  (Gil.  120);  Higgins  v.  Dewey,  107  Mass. 
494;  Grannis  v.  Cummings,  25  Conn.  165;  McCully  v.  Clarke,  40  Pa.  St. 
399;  Miller  v.  Martin,  16  Mo.  508;  Fahn  v.  Reichart,  8  Wis.  255;  Sturgis 
v.  Robbins,  62  Me.  289;  Tourtellot  v.  Rosebrook,  11  Mete.  (Mass.)  460; 
Fraser  v.  Tupper,  29  Yt.  409. 

•*  Bryan  v.  Fowler,  70  X.  C.  590.    As  to  railroad  fires,  see  post,  pp.  3.~>3-:Hv>. 


350  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

in  the  selection  of  the  time,  and  is  not  negligent  in  other  respects.1 
The  rule  is  thus  stated  in  a  Maine  case:2  "Every  person  has  a 
right  to  kindle  a  fire  on  his  own  land  for  the  purposes  of  hus- 
bandry, if  he  does  it  at  a  proper  time,  and  in  a  suitable  manner, 
and  uses  reasonable  care  and  diligence  to  prevent  it  spreading, 
and  doing  injury  to  the  property  of  others.  The  time  may  be  suit- 
able, and  the  manner  prudent,  and  yet,  if  he  is  guilty  of  negligence 
in  taking  care  of  it,  and  it  spreads,  and  injures  the  property  of  an- 
other, in  consequence  of  such  negligence,  he  is  liable  in  damages  for 
the  injury  done.  The  gist  of  the  action  is  negligence,  and  if  that 
exists  in  either  of  these  particulars,  and  injury  is  done  in  conse- 
quence thereof,  the  liability  attaches;  and  it  is  immaterial  whether 
the  proof  establishes  gross  negligence,  or  only  a  want  of  ordinary 
care  on  the  part  of  the  defendant."  And,  in  general,  it  is  imma- 
terial for  what  purpose  the  fire  is  kindled  by  the  landowner  or  occu- 
pant, provided  it  is  a  lawful  one.  If  it  spreads  to  and  injures  prop- 
erty on  adjoining  land,  he*  who  seeks  to  enforce  liability  therefor 
must  affirmatively  prove  negligence,  either  in  the  inception  or  sub- 
sequent handling  of  the  fire.3  But  the  burden  of  proof  would  seem 
to  be  on  the  defendant  to  establish  his  freedom  from  negligence, 
where  he  has  either  intentionally  or  accidentally  set  fire  upon  land 
not  his  own;4  otherwise  it  is  upon  the  plaintiff.5  And  where  the 
fire  is  set  upon  the  land  of  another  the  originator  is,  in  general, 
liable  for  whatever  damage  results.6 

§  146.  i  Clark  v.  Foot,  8  Johns.  (N.  Y.)  421;  Bachelder  v.  Heagan,  18  Me. 
32;  Stuart  v.  Hawley,  22  Barb.  (X.  Y.)  619;  Dewey  v.  Leonard,  14  Minn. 
153  (Gil.  120);  Fahn  v.  Reichart,  8  Wis.  255;  Fraser  v.  Tupper,  29  Vt.  409; 
Hays'  Adru'r  v.  Miller,  6  Hun  (N.  Y.)  320;  Hanlon  v.  Ingram,  3  Iowa,  81; 
Dolby  v.  Hearn,  1  Marv.  153,  37  Atl.  45;  Lillibridge  v.  McCann  (Mich.)  75 
N.  W.  288. 

2  Hewey  v.  Nourse,  54  Me.  256. 

3  Tourtellot  v.  Rosebrook.  11  Mete.  (Mass.)  460;    Bachelder  v.  Heagan,  18 
Me.  32;   Ellsworth  v.  Ellingson,  96  Iowa,  154,  64  N.  W.  774. 

*  Cleland  v.  Thornton,  43  Cal.  437;   Jordan  v.  Wyatt,  4  Grat.  (Va.)  151. 

B  Bachelder  v.  Heagan,  18  Me.  32;  Clark  v.  Foot,  8  Johns.  (N.  Y.)  421; 
Stuart  v.  Hawley,  22  Barb.  (N.  Y.)  619;  Dewey  v.  Leonard,  14  Minn.  153 
(Gil.  120);  Miller  v.  Martin,  16  Mo.  508;  Fahn  v.  Reichart,  8  Wis.  255;  Fraser 
v.  Tupper,  29  Vt.  409. 

«  Finley  v.  Langston,  12  Mo.  120. 


fc    117)  ACCIDENTAL    FIRES.  351 

SAME— ACCIDENTAL  FIRES. 

147.  When  damage  is  caused  by  fires  accidental  in  their 
origin,  the  test  of  liability  is  the  degree  of  care  ex- 
ercised by  the  defendant. 

When  fires  originate  without  any  deliberate  intent,  the  usual  test 
of  ordinary  care  applies.1  Where  the  servants  of  defendant  left 
oil  and  inflammable  material  close  to  a  stove,  which  was  constantly 
growing  hotter,  thus  producing  a  conflagration,  which  destroyed 
plaintiff's  property,  it  was  held  that  a  verdict  of  negligence  was 
warranted.2 

Proximate  Damage  from  Negligent  Fires. 

To  what  extent  a  person  is  liable  for  damage  caused  by  his  neg- 
ligence in  starting  or  permitting  a  fire  to  spread,  is  a  question  in- 
volving much  difficulty,  and  embracing  many  conflicting  decisions. 
It  has  already  been  observed  3  that,  in  theory,  at  least,  there  is  no 
escape  from  the  conclusion  that  there  is  no  limit  to  the  liability 
of  a  person  for  the  direct,  natural  results  of  his  negligence.  If  be- 
tween the  act  of  the  person  and  the  damage  complained  of  there 
intervenes  an  act  or  condition  legally  sufficient  to  break  the  causal 
connection,  to  obliterate  the  influence  of  the  primary  cause,  and 
make  the  results  its  own  offspring,  the  original  actor  cannot  be- 
held responsible.  The  proposition  is  simple;  the  difficulty  lies  in 
its  application  to  concrete  cases.  In  discussing  this  subject,  the  su- 
preme court  of  the  United  States  says:  "One  of  the  most  valuable 
of  the  criteria  furnished  us  by  the  authorities  is  to  ascertain  whether 
any  new  cause  has  intervened  between  the  fact  accomplished  and 
the  alleged  cause.  If  a  new  force  or  power  has  intervened,  of  itself 
sufficient  to  stand  as  the  cause  of  the  misfortune,  the  other  must 
be  considered  as  too  remote."  *  The  great  weight  of  authority  in 
this  country  undoubtedly  holds  that  the  mere  intervention  of  space 

§  147.     i  Spaulding  v.  Railway  Co.,  30  Wis.  110;    Webb  v.  Railroad  Co^ 
49  X.  Y.  420;    Lansing  v.  Stone,  37  Barb.  (N.  Y.)  15. 
2  Read  v.  Railroad  Co.,  44  X.  J.  Law,  280. 
s  See  "Xegligence,"  ante,  pp.  17-33. 
*  Mutual  liis.  Co.  v.  Tweed,  7  Wall.  44. 


352  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

does  not  make  the  damage  remote.  Thus,  if  the  defendant  negli- 
gently starts  a  fire,  which  communicates  to  the  land  of  B.,  and 
thence  to  the  land  of  C.,  and  so  on  through  succeeding  holdings  to 
the  property  of  the  plaintiff,  the  mere  fact  of  the  remoteness  of 
the  plaintiff's  property  from  the  place  where  the  fire  originated  will 
not  preclude  his  recovery  from  the  defendant.5  In  Perley  v.  Eastern 
R.  Co.,6  the  court  says:  "The  fact,  therefore,  that  the  fire  passes 
through  the  air,  driven  by  a  high  wind,  and  that  it  is  communicated 
to  the  plaintiff's  property  from  other  intermediate  property  of  other 
men,  does  not  make  his  loss  a  remote  consequence  of  the  escape 
of  the  fire  from  the  engine.  *  *  *  If,  when  the  cinder  escapes 
through  the  air,  the  effect  which  it  produces  upon  the  first  com- 
bustible substance  against  which  it  strikes  is  proximate,  the  effect 
must  continue  to  be  proximate  as  to  everything  which  the  fire  con- 
sumes in  its  direct  course.  As  a  matter  of  fact,  the  injury  to  the 
plaintiff  was  as  immediate  and  direct  as  an  injury  would  have  been 
which  was  caused  by  a  bullet,  fired  from  the  train,  passing  over  the 
intermediate  lots,  and  wounding  the  plaintiff  as  he  stood  upon  his 
own  lot."  In  the  latter  case  a  locomotive  set  fire  to  grass  near 
the  track,  and  the  fire  crossed  the  land  of  A.,  B.,  and  C.  before- 
reaching  and  destroying  the  property  of  the  plaintiff,  wrho  was  al- 
lowed to  recover.  In  another  case  where  recovery  was  permitted 
the  fire  was  communicated  from  dry  grass  on  the  defendant's  right 

6  Hart  v.  Railroad  Co.,  13  Mete.  (Mass.)  99;  Perley  v.  Railroad  Co.,  98 
Mass.  414;  Powell  v.  Deveney,  3  Cush.  (Mass.)  300;  Vandenburgh  v.  Truax, 
4  Denio  (N.  Y.)  464;  Cleaveland  v.  Railway  Co.,  42  Vt.  449;  Toledo.  P.  &  W. 
Ry.  Co.  v.  Pindar,  53  111.  447;  Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  94 
U.  S.  4(59;  Missouri  Pac.  R.  Co.  v.  Texas  &  P.  R.  Co.,  31  Fed.  32U;  At- 
kinson v.  Transportation  Co.,  GO  Wis.  141,  18  N.  W.  764;  Delaware,  L.  & 
W.  R.  Co.  v.  Salmon,  39  N.  J.  Law,  300;  Hoyt  v.  Jeffers,  30  Mich.  181; 
Billman  v.  Railroad  Co.,  76  Ind.  1GG;  Henry  v.  Railroad  Co.,  50  Cal.  176; 
Small  v.  Railroad  Co.,  55  Iowa,  582,  8  N.  W.  437;  Sibley  v.  Railroad  Co., 
32  Minn.  526,  21  N.  W.  732;  Ingersoll  v.  Railroad  Co.,  8  Allen  (Mass.)  438; 
Annapolis  &  E.  R.  Co.  v.  Gantt,  39  Md.  115;  Coates  v.  Railway  Co.,  61  Mo. 
38.  In  direct  conflict  with  this  rule  are  Ryan  v.  Railroad  Co.,  35  N.  Y.  210; 
Pennsylvania  R.  Co.  v.  Kerr,  62  Pa.  St.  353;  Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
McBride,  54  Kan.  172,  37  Pac.  978;  Chicago  &  E.  R.  Co.  v.  Luddiugton,  10 
Ind.  App.  636,  38  N.  E.  342. 

e  98  Mas*.  414,  at  pages  418,  419. 


§    149)  DEGREE    OF    CARE.  353 

of  way  to  the  adjoining  fields,  and  thence  traveled  nearly  a  mile 
before  destroying  plaintiff's  property.7  In  Poeppers  v.  Missouri,  K. 
&  T.  Ry.  Co.,8  the  fire,  which  originated  in  dry  grass  beside  defend- 
ant's road,  extended  a  distance  of  about  eight  miles  before  reach- 
ing and  destroying  the  property  for  which  plaintiff  was  allowed  to 
recover.  In  some  states  the  liability  of  railroad  companies  for  dam- 
ages caused  by  fire  originating  from  their  locomotives  is  affected 
by  special  statutes. 

SAME— EAILROAD  FIRES. 

148.  In  the  absence  of  special  statute,  it  is  the  •well-settled 

law,  both  of  England  and  the  United  States,  that 
the  gist  of  liability  for  fires  set  by  locomotives  is 
negligence.1 

In  a  few  states,  by  statutory  enactment,  the  question  of  negli- 
gence is  entirely  eliminated,  and  railroad  companies  are  liable,  ipso 
facto,  for  any  damage  resulting  from  fires  kindled  by  their  engines.2 

149.  DEGREE  OF  CARE — A  railroad   company  chartered 

•with  the  right  to  use  steam  as  a  motive  power  is 
liable  for  fires  kindled  by  its  engines  only  -when  it 
has  failed  to  use  that  degree  of  care  in  their  opera- 
tion which  a  prudent  man,  skilled  in  the  particular 
business,  would  exercise. 

^  Burlington  &  M.  R.  Co.  v.  Westover,  4  Neb.  268. 

s  67  Mo.  715. 

§  148.  i  Philadelphia  &  R.  R.  Co.  v.  Yeiser,  8  Pa.  St.  366;  Frankford  & 
B.  Turnpike  Co.  v.  Philadelphia  &  T.  R.  Co.,  54  Pa.  St.  345;  Philadelphia 
&  R.  R.  Co.  v.  Yerger,  73  Pa.  St.  121;  Illinois  Cent.  R.  Co.  v.  Mills,  42  111. 
407;  Indiana  &  C.  R.  Co.  v.  Paramore,  31  Ind.  143;  Jackson  v.  Railroad  Co., 
31  Iowa,  176;  Kansas  Pac.  Ry.  Co.  v.  Butts.  7  Kan.  308;  Ellis  v.  Railroad  Co., 
2  Ired.  (X.  C.)  138;  Morris  &  E.  R.  Co.  v.  State,  36  N.'j.  Law,  553;  Burroughs 
v.  Railroad  Co.,  15  Conn.  124;  Home  Ins.  Co.  v.  Pennsylvania  R.  Co.,  11 
Hun  (N.  Y.)  182;  McHugh  v.  Chicago  &  N.  W.  Ry.  Co.,  41  Wis.  78;  Woodson 
v.  Railway  Co.,  21  Minn.  60;  Continental  Trust  Co.  v.  Toledo,  St.  L.  & 
K.  C.  R.  Co.,  89  Fed.  637. 

2  Perley   v.    Railroad   Co.,    98   Mass.   414;     Simmonds   v.   Railroad   Co.,   52 
Conn.  264;   Rowell  v.  Railroad  Co.,  57  N.  H.  132. 
BAR.NEG.— 23 


354  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

In  Yaughan  v.  Taff  Yale  R.  Co.,1  Cockburn,  C.  J.,  says:  "When 
the  legislature  has  sanctioned  and  authorized  the  use  of  a  particu- 
lar thing,  and  it  is  used  for  the  purpose  for  which  it  was  author- 
ized, and  every  precaution  has  been  observed  to  prevent  injury,  the 
sanction  of  the  legislature  carries  with  it  this  consequence:  that,  if 
damage  results  from  the  use  of  such  thing,  independently  of  negli- 
gence, the  party  using  it  is  not  responsible." 

Such  negligence  as  will  render  the  company  liable  may  be  other- 
wise stated  to  be  the  failure  to  use  every  reasonable  precaution 
to  guard  against  setting  fires.2  It  goes  without  saying  that  the 
reasonableness  of  a  precaution  may  depend  entirely  on  the  prevail- 
ing conditions,  the  same  care  not  being  required  when  the  ground 
is  covered  with  snow,  or  drenched  with  rain,  as  when  the  land  is 
suffering  from  a  drought,  and  materials  along  the  route  have  be- 
come dry  and  inflammable  like  tinder.  The  care,  therefore,  as  in 
other  cases,  must  be  proportioned  to  the  danger. 

Construction  of  Engines. 

Locomotives  should  be  supplied  with  all  well-known  and  tested 
appliances  for  preventing  the  escape  of  sparks,3  and,  even  when 
such  appliances  have  been  adopted,  the  company  is  not  excused  if 
sparks  escape  through  negligent  usage,  as  overcrowding  the  en- 

§  149.     i  5  Hurl.  &  N.  679. 

2  Jackson  v.  Railroad  Co.,  31  Iowa,  176;  Huyett  v.  Railroad  Co.,  23  Pa. 
St.  373;  Illinois  Cent.  R.  Co.  v.  McClelland,  42  111.  355;  Bass  v.  Railroad 
Co.,  28  111.  9.  And  see  Rood  v.  Railroad  Co.,  18  Barb.  (N.  Y.)  80;  Philadel- 
phia &  R.  R.  Co.  v.  Yeiser,  8  Pa.  St.  366;  Burroughs  v.  Railroad  Co.,  15 
Conn.  124;  Baltimore  &  S.  R.  Co.  v.  Woodruff,  4  Md.  242;  Indiana,  B.  &  W. 
Ry.  Co.  v.  Craig,  14  111.  App.  407;  St.  Louis  S.  W.  Ry.  Co.  v.  Knight  (Tex. 
Civ.  App.)  49  S.  W.  250;  St.  Louis  &  S.  F.  Ry.  Co.  v.  Hoover,  3  Kan.  App.  577, 
43  Pac.  854.  But  the  fact  that,  after  a  fire  has  been  negligently  started 
by  a  railroad  company  on  its  right  of  way,  employe's  used  every  effort  to 
extinguish  it,  will  not  relieve  the  company  from  liability.  Chicago  &  E.  R. 
Co.  v.  Luddington,  10  Ind.  App.  636,  38  N.  E.  342. 

s  Menominee  River  s'ash  &  Door  Co.  v.  Milwaukee  &  N.  R.  Co.,  91  Wis. 
447,  65  N.  W.  176;  Watt  v.  Railroad  Co.,  23  Nev.  154,  44  Pac.  423.  And 
failure  to  use  a  spark  arrester  is  negligence  per  se.  Anderson  v.  Steamboat 
Co.,  64  N.  C.  399;  Bedell  v.  Railroad  Co.,  44  N.  Y.  367.  Relative  merits  of 
smoke-consuming  appliances  a  question  for  jury.  American  Strawboard  Co. 
v.  Chicago  &  A.  R.  Co.,  75  111.  App.  420. 


§    149)  DEGREE    OF    CARE. 

gine.4  The  company  need  not  experiment  with  every  new  inven- 
tion that  is  offered.  Failure  to  adopt  a  particular  appliance  is  neg- 
ligence only  when  it  has  been  found  effective,  and  generally  adopted.5" 
An  instruction  to  the  effect  that  defendant  was  guilty  of  negli- 
gence unless  his  boat  was  provided  with  all  the  means  and  appli- 
ances which  science  has  discovered  to  prevent  the  escape  of  fire- 
is  erroneous.6  But,  to  relieve  the  company  from  liability,  it  is  not 
sufficient  to  show  that  the  machinery  used  was  such  as  was  itt 
common  and  general  use,  and  had  been  approved  by  experience.7" 
The  requirement  that  engines  should  use  the  best-known  appliances- 
to  prevent  injury  to  property  by  fire  has  been  held  both  reason- 
able 8  and  unreasonable.9 

Combustibles  on  Right  of  Way. 

Ordinary  care  on  the  part  of  a  railroad  company  to  prevent  the* 
kindling  and  spread  of  fires  requires  that  it  should  keep  its  prop- 
erty adjacent  to  the  tracks  free  from  inflammable  materials,  and 
failure  to  do  so  is  evidence  of  negligence.10  Such  failure,  however,. 
is  not  conclusive  against  the  railroad,  the  question  of  negligence 
being  for  the  determination  of  the  jury  on  the  facts,11  and  the  com- 

*  Toledo,  P.  &  W.  Ry.  Co.  v.  Pindar,  53  I1L  447;  Atchison,  T.  &  S.  F.  R_ 
Co.  v.  Huitt,  1  Kan.  App.  788,  41  Pac.  1051. 

s  Frankford  &  B.  Turnpike  Co.  v.  Philadelphia  &  T.  R.  Co.,  54  Pa.  St_ 
345;  Steinweg  v.  Railway  Co.,  43  N.  Y.  123;  Paris,  M.  &  S.  P.  Ry.  Co,  T. 
XesbStt,  11  Tex.  Civ.  App.  608,  33  S.  W.  280;  Spaulding  v.  Railroad  Co.,  3O 
Wis.  110.  And  mistaken  judgment  in  choosing  a  poorer  instead  of  a  better 
contrivance  is  not  necessarily  negligence.  Hoff  v.  Railroad  Co.,  45  N.  J. 
Law,  201. 

6  Read  v.  Morse,  34  Wis.  315. 

7  Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Nelson,  51  Ind.  150. 
s  Watt  v.  Railroad  Co.,  23  Nev.  154,  44  Pac.  423. 

»  Paris,  M.  &  S.  P.  Ry.  Co.  v.  Nesbitt,  11  Tex.  Civ.  App.  608,  33  S.  W.  280L 

10  Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Nelson,  51  Ind.  150;    Clarke  v.  Railway- 
Co.,  33  Minn.  359,  23  N.  W.  536;    Kellogg  v.  Railway  Co.,  26  Wis.  223;    OMo- 
&  M.  R.  Co.  v.  Shanefelt,  47  111.  497;    Eddy  v.  Lafayette,  163  U.  S.  456,  ia 
Sup.  Ct.  10S2;    Louisville  &  N.  R.  Co.  v.  Miller,  109  Ala.  500,  19  South.  983;. 
Blue  v.  Railroad  Co.,  117  N.  C.  644,  23  S.  E.  275;    New  York.   P.  &  N.  R_ 
Co.  v.  Thomas,  92  Va.  606,  24  S.  E.  264;    Briant  v.  Railroad  Co.,  104  Mich_ 
307,  62  N.  W.  365;    Black  v.  Railroad  Co.,  115  N.  C.  667,  20  S.  E.  713,  909;: 
Watt  v.  Railroad  Co.,  23  Xev.  154,  44  Pac.  423;    Mobile  &  O.  R.  Co.  v.  Stin- 
suu,  74  Miss.  453,  21  South.   14. 

11  Illinois  Cent.   R.   Co.  v.   Mills,   42  111.  4U8;    Richmond  &   D.    R.    Co.  v. 


356  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

pany  is  not  relieved  from  liability  for  negligence  in  this  respect, 
although  it  used  the  newest  and  most-approved  spark  arresters.12 

Proof  of  Cause  of  Fire. 

The  burden  of  proving  that  the  fire  in  question  was  set  by  de- 
fendant's locomotives  is  upon  the  plaintiff,  but  it  need  not  be  shown 
beyond  a  reasonable  doubt,  or  by  a  preponderance  of  testimony. 
It  is  sufficient  if  the  evidence  reasonably  warrants  the  conclusion.13 
But  the  mere  fact  that  a  fire  started  upon  the  right  of  way  of  a 
railroad  is  insufficient  to  support  a  verdict  for  damages  caused 
thereby,14  although  very  slight  evidence  is  enough  to  support  a 
verdict  against  the  railroad  when  no  other  cause  or  theory  for  the 
origin  of  the  fire  is  presented.15  It  is  not  essential  that  the  origin 
of  the  fire  be  traced  to  a  particular  engine,  and  evidence  that  on 
previous  occasions  different  engines  of  defendant  on  the  same  road 
had  dropped  live  coals  or  emitted  sparks,  is  competent  as  tending 
to  show  habitual  negligence,  and  will  be  sufficient  to  support  a  find- 
ing that  the  fire  complained  of  was  set  in  the  same  way.16  Very 
slight  evidence  as  to  the  origin  of  the  fire  entitles  the  question  to 
submission  to  the  jury.17 

Medley,  75  Va.  499;  Brown  v.  Railroad  Co.,  4  App.  Div.  465,  38  N.  Y.  Supp. 
655;  Taylor  v.  Railroad  Co.,  174  Pa.  St.  171,  34  Atl.  457;  Padgett  v.  Railroad 
Co.,  7  Kan.  App.  736,  52  Pac.  578;  Waters  v.  Railroad  Co.  (N.  J.  Sup.)  43 
Atl.  670. 

12  Texas  &  P.  Ry.  Co.  v.  Ross,  7  Tex.  Civ.  App.  653,  27  S.  W.  728;  Gal- 
veston,  H.  &  S.  A.  Ry.  Co.  v.  Polk  (Tex.  Civ.  App.)  28  S.  W.  353;  New  York, 
P.  &  N.  R.  Co.  v.  Thomas,  92  Va.  606,  24  S.  E.  264;  Toledo,  P.  &  W. 
Ry.  Co.  v.  Endres,  57  111.  App.  69;  Chicago  &  A.  R.  Co.  v.  Glenny,  70 
111.  App.  510;  Tutwiler  v.  Railway  Co.,  95  Va.  443,  28  S.  E.  597;  Chicago 
&  E.  R.  Co.  v.  Bailey,  19  Ind.  App.  163,  46  N.  E.  688;  International  &  G. 
N.  R.  Co.  v.  Newman  (Tex.  Civ.  App.)  40  S.  W.  854. 

is  Watt  v.  Railroad  Co.,  23  Nev.  154,  44  Pac.  423,  and  46  Pac.  52;  Lake- 
side &  M.  R.  Co.  v.  Kelly,  10  Ohio  Cir.  Ct.  R.  322,  3  Ohio  Dec.  319;  Sheldon 
v.  Railroad  Co.,  29  Barb.  (N.  Y.)  226. 

i*  Taylor  v.  Railroad  Co.,  174  Pa.  St.  171,  34  Atl.  457. 

is  Keniiey  v.  Railroad  Co.,  70  Mo.  243;  Cole  v.  Railway  Co.,  105  Mich. 
549,  G3  N.  W.  647;  Fremantle  v.  Railroad  Co.,  10  C.  B.  (N.  S.)  89. 

16  Field  v.  Railroad  Co.,  32  N.  Y.  339;  Sheldon  v.  Railroad  Co.,  14  N. 
Y.  218.  And  see  Frier  v.  Canal  Co.,  86  Hun,  464,  33  N.  Y.  Supp.  886;  Pig- 
got  v.  Railroad  Co.,  3  C.  B.  229. 

IT  Cole  v.  Railway  Co.,  105  Mich.  549,  63  N.  W.  647. 


§    149)  DEGREE   OF    CARE.  357 


Proof  of 

By  the  great  weight  of  authority,  a  presumption  of  defendant's 
negligence  arises  when  the  setting  of  the  fire  has  been  brought 
home  to  the  railroad  company.18  In  Field  v.  New  York  Cent.  E. 
Co.19  the  court  says:  "Undoubtedly,  the  burden  of  proving  that 
the  injury  complained  of  was  caused  by  defendants'  negligence  was 
upon  the  plaintiff.  To  showr  negligence,  however,  it  was  not  neces- 
sary that  he  should  have  proved  affirmatively  that  there  was  some- 
thing unsuitable  or  improper  in  the  construction  or  condition  or 
management  of  the  engine  that  scattered  the  fire  communicated  to 
his  premises.  It  often  occurs,  as  in  this  case,  that  the  same  evi- 
dence which  proves  the  injury  shows  such  attending  circumstances 
as  to  raise  a  presumption  of  the  offending  party's  negligence,  so  as 
to  cast  on  him  the  burden  of  disproving  it.  Then  the  injury  was 
caused  by  dropping  from  the  defendants'  engine  coals  of  fire.  The 
fact  that  the  sparks  or  coals  were  scattered  at  all  upon  their  road- 
way, in  such  quantities  as  to  endanger  property  on  abutting  prem- 
ises, raised  an  inference  of  some  weight  that  the  engines  were  im- 
properly constructed  or  managed.  But  this  was  not  all.  It  was 
conceded  and  proved  that,  if  the  engine  is  properly  constructed, 
and  in  order,  no  fire  of  any  amount  will  escape  to  be  distributed 
along  the  track.  *  *  *  It  was  legitimately  to  be  inferred  from 
these  facts  that  the  scattering  of  coals  of  fire  from  the  defendants' 
engines,  which  were  found  upon  their  track,  and  which  produced 

is  Piggot  v.  Railroad  Co.,  3  C.  B.  229;  Bass  v.  Chicago,  B.  &  Q.  R. 
Co.,  28  111.  9;  Fitch  v.  Railroad  Co.,  45  Mo.  322;  Illinois  Cent.  R.  Co.  v. 
Mills,  42  111.  407;  Case  v.  Railroad  Co.,  59  Barb.  (N.  Y.)  644;  Bedford  v. 
Railroad  Co.,  46  Mo.  456;  Spaulding  v.  Railroad  Co.,  30  Wis.  110;  Slossea 
v.  Railroad  Co.,  60  Iowa,  215,  14  N.  W.  244  (statutory);  Chicago  &  A.  R. 
Co.  v.  Pennell,  110  111.  435  (statutory);  Lowery  v.  Railway  Co.,  99  N.  Y.. 
158,  1  N.  E.  608;  Green  Ridge  R.  Co.  v.  Brinkman,  64  Md.  52,  20  Atl.  1024;. 
Ellis  v.  Railroad  Co.,  24  N.  C.  138;  McCready  v.  Railroad  Co.,  2  Strob_ 
(S.  C.)  35G;  Cleaveland  v.  Railroad  Co.,  42  Vt.  449  (statutory);  Simpson  v.. 
Railroad  Co.,  5  Lea  (Tenn.)  456;  Burlington  &  M.  R.  Co.  v.  Westover,  4; 
Neb.  268;  International  &  G.  N.  R.  Co.  v.  Timmermann,  61  Tex.  660;  Sibil- 
rud  v.  Railroad  Co.,  29  Minn.  58,  11  N.  W.  146;  Edwards  v.  Bonner,  12  Tex. 
Civ.  App.  236,  33  S.  "W.  761;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Johnson  (Tex.. 
Sup.)  50  S.  W.  563;  Texas  M.  R.  Co.  v.  Hooten  (Tex.  Civ.  App.)  50  S.  W. 
499. 

i»  32  N.  Y.  339. 


358  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

the  injury,  was  the  result  either  of  effectiveness  in  the  machinery, 
or  neglect  in  repairing  it."  Pennsylvania  and  Ohio  are  exceptions 
to  this  rule,  having  held  that  it  rests  with  the  plaintiff  to  show 
^defendant's  failure  to  observe  some  necessary  precaution.20  This 
presumption  of  negligence  is  generally  held  to  be  rebutted  by  proof 
that  the  engine  was  equipped  with  the  best  appliances,  and  was 
-carefully  handled; 21  but  when  the  origin  of  the  fire  is  proved  to 
l>e  from  sparks  emitted  from  defendant's  engine,  and  the  latter 
proves  that  the  engine  was  equipped  with  the  best  appliances,  and 
properly  handled,  the  question  whether  the  statutory  presumption 
•of  negligence  on  the  part  of  defendant  has  been  rebutted  has  been 
held  to  be  for  the  jury.22  But  where  it  appears  by  the  uncontra- 
<dicted  evidence  that  defendant  used  the  best  spark  arrester  known, 
It  is  error  to  submit  to  the  jury  the  question  of  defendant's  negli- 
gence in  using  such  arrester.23  It  has  been  held  to  be  sufficient  evi- 
dence that  a  spark  arrester  is  defective  to  show  that  for  a  con- 
•siderable  time  prior  to  the  fire  complained  of  it  has  emitted  sparks 
which  presumably  set  fire  to  the  right  of  way.24 

Contributory  Negligence. 

The  owner  or  occupant  of  property  must  use  ordinary  care  to 
preserve  his  property  from  destruction  or  injury  by  fire  which  threat- 

•zo  Philadelphia  &  R.  B.  Co.  v.  Yerger,  73  Pa.  St.  121;  Jennings  v.  Rail- 
road Co.,  93  Pa.  St.  337;  Ruffner  v.  Cincinnati,  H.  &  D.  R.  Co.,  34  Ohio 
St  96. 

siSearles  v.  Railroad  Co.,  101  N.  Y.  661,  5  N.  E.  66;  Brown  v.  Railroad 
Co.,  19  S.  C.  39;  Lake  Erie  &  W.  Ry.  Co.  v.  Gossard,  14  Ind.  App.  244, 
•42  N.  E.  818.  But  see  Lake  Erie  &  W.  R.  Co.  v.  Holderman,  56  111.  App. 
H.44;  Menominee  River  Sash  &  Door  Co.  v.  Milwaukee  &  N.  R.  Co.,  91 
Wis.  447,  65  N.  W.  176;  Cleveland,  C.,  C.  &  St.  L.  Ry.  Co.  v.  Case,  71 
mL  App.  459;  Louisville  &  N.  R.  Co.  v.  Dalton  (Ky.)  43  S.  W.  431.  Evidence 
not  sufficient  to  show  careful  handling.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Huitt, 
1  Kan.  App.  788,  41  Pac.  1051. 

-«  Burud  v.  Railroad  Co.,  62  Minn.  243,  64  N.  W.  562;  Callaway  v.  Stur- 
geon, 58  111.  App.  159. 

"  Frace  v.  Railroad  Co.  (reversing  [Sup.]  22  N.  Y.  Supp.  958)  143  N. 
T.  182,  38  N.  E.  102;  Menominee  River  Sash  &  Door  Co.  v.  Milwaukee 
A.N.  R.  Co.,  91  Wis.  447,  65  N.  W.  176. 

**  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  McCorkle,  12  Ind.  App.  691,  40  N. 
B.  26;  Peck  v.  Railroad  Co.,  37  App.  Div.  110,  55  N.  Y.  Supp.  1121;  Mc- 
•3Cavish  v.  Railway  Co.  (N.  D.)  79  N.  W.  443. 


§    149)  DEGREE    OF    CARE.  359 

ens  it,25  but  he  is  not  bound  to  anticipate  the  negligence  of  a  rail- 
road company  in  the  operation  of  its  engines.26  He  may,  without 
subjecting  himself  to  the  charge  of  contributory  negligence,  use  his 
land  for  any  legitimate  purpose; 27  and  may  either  cut  his  grass, 
or  permit  it  to  stand  and  become  dry,  as  he  may  see  fit; 28  and  he 
may  so  use  his  property,  in  the  exercise  of  ordinary  care,  although 
he  may  know  that  the  neighboring  railroad  has,  through  its  negli- 
gence, set  frequent  fires.29  He  may  erect  his  buildings  in  close 
proximity  to  the  railroad,30  and  roof  them  with  what  material  he 
may  choose.31  As  has  been  aptly  stated  by  Shearman  and  Red- 
field:32  'Tor,  if  the  frequent  recurrence  of  sparks  large  enough  to 
set  thatched  roofs  on  fire  is  to  make  it  an  act  of  negligence  in  a 
peasant  owner  to  cover  his  house  with  a  thatched  roof,  then  a  few 
more  sparks  wrill  preclude  him  from  using  shingles." 

In  a  certain  class  of  cases  where  the  owner  has  placed  or  per- 
mitted inflammable  matter,  otherwise  than  in  due  natural  course, 

2  s  Illinois  Cent.  R.  Co.  v.  McClelland,  42  111.  355;  St.  Louis  &  S.  F.  Ry. 
€o.  v.  Stevens,  3  Kan.  App.  176,  43  Pac.  434;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Jagoe  (Tex.  Civ.  App.)  32  S.  W.  717;  Texas  Pac.  Ry.  Co.  v.  Leon  &  H.  Blum 
Land  Co.  (Tex.  Civ.  App.)  49  S.  W.  253. 

20  Ernst  v.  Railroad  Co.,  35  N.  Y.  9;  Fox  v.  Sackett,  10  Allen  (Mass.)  535; 
Reeves  v.  Railroad  Co.,  30  Pa.  St.  454;  New  York,  C.  &  St.  L.  R.  Co.  v. 
Orossman,  17  Ind.  App.  652,  46  N.  E.  546;  Mobile  &  O.  R.  Co.  v.  Stinson, 
74  Miss.  453,  21  South.  14,  522. 

27  Kalbfleisch  v.  Railroad  Co.,  102  N.  Y.  520,  7  N.  E.  557. 

as  Philadelphia  &  R.  R.  Co.  v.  Schultz,  93  Pa.  St.  341;  Pittsburgh,  C. 
&  St.  L.  Ry.  Co.  v.  Jones,  86  Ind.  496;  Richmond  &  D.  R.  Co.  v.  Medley,  75 
Va.  499;  Fitch  v.  Railroad  Co.,  45  Mo.  322;  Vaughan  v.  Railroad  Co.,  3 
Hurl.  &  N.  743;  Union  Pac.  Ry.  Co.  v.  Ray,  46  Xeb.  750,  65  N.  W.  773; 
Padgett  v.  Railroad  Co.,  7  Kan.  App.  736,  52  Pac.  578. 

29  Snyder  v.  Railway  Co.,  11  W.  Va.  14. 

so  Burke  v.  Railroad  Co.,  7  Heisk.  (Tenn.)  451;  Grand  Trunk  R.  Co.  v. 
Richardson,  91  U.  S.  454.  But  see  Briant  v.  Railroad  Co.,  104  Mich.  307, 
G2  N.  W.  365;  Cleveland,  C.,  C.  &  St  L.  Ry.  Co.  v.  Scantland,  151  Ind.  488; 
51  N.  E.  1068.  Failure  to  replace  broken  glass  in  window  facing  track  in 
building  filled  with  hay  not  negligence.  Wild  v.  Railroad,  171  Mass.  245, 
50  N.  E.  533. 

si  Burke  v.  Railroad  Co.,  7  Heisk.  (Tenn.)  451;  Alpern  v.  Churchill,  53 
Mich.  607,  19  N.  W.  549;  Louisville  &  N.  R.  Co.  v.  Malone,  116  Ala.  600, 
22  South.  897. 

«2  Shear.  &  R.  Neg.  (4th  Ed.)  §  680. 


360  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

to  accumulate  in  close  proximity  to  a  railroad,  and  where  it  is  liable 
to  be  ignited  by  sparks  from  passing  engines,  the  question  of  his 
contributory  negligence  has  been  held  properly  submitted  to  the 
jury.33  It  is  impossible,  however,  to  draw  any  rational  distinction 
in  principle  between  exposing  a  cord  of  wood  or  a  barn  to  the  dan- 
ger arising  from  fire  from  locomotives.  If  one  may  rightfully,  and 
without  incurring  the  Charge  of  contributory  negligence,  place  his 
dwelling  house  within  two  feet  of  a  railroad  track,  where  engines 
are  constantly  passing,  it  is  difficult  to  see  why  he  may  not  with 
equal  impunity  pile  his  wood  in  a  similar  place.  The  reasoning  of 
the  court  in  Vaughan  v.  Taff  Vale  R.  Co.,34  which  has  been  so  fre- 
quently followed  in  the  United  States,  would  seem  to  be  convincing. 
A  person  ought  not  to  be  charged  with  negligence  because  he  does 
not  change  his  legitimate  mode  of  conducting  his  business,  in  or- 
der to  accommodate  himself  to  the  negligent  conduct  of  his  neigh- 
bor. His  right  to  make  an  unrestricted  use  of  his  own  property 
should  not  be  curtailed  by  the  fear  that  his  neighbor  will  make  a 
negligent  use  of  his.  He  is  not  required  to  spend  time,  money,  and 
labor  in  endeavoring  to  make  his  property  proof  against  another's 
careless  conduct.35  We  conclude  that  the  true  rule  in  these  cases 
is  that  a  plaintiff  is  not  responsible  for  the  mere  condition  of  his 
premises  lying  alongside  a  railroad,  but,  in  order  to  be  held  for 
contributory  negligence,  must  have  been  guilty  of  the  omission  of 
some  positive  duty,  which,  concurring  with  the  negligence  of  the 
defendant  company,  is  the  proximate  cause  of  his  injury.38 

ANIMALS. 

150.  Animals  ferae  naturae  are  presumptively  dangerous, 
and  their  owner  is  responsible  for  their  injurious 
acts,  caused  by  his  negligence,  regardless  of  his 
knowledge  of  their  individual  dispositions. 

•  a  Murphy  v.  Railway  Co.,  45  Wis.  222;  Collins  v.  Railroad  Co.,  5  Hun 
(N.  Y.)  499;  Niskern  v.  Railway  Co.,  22  Fed.  811;  Omaha  Fair  &  Exposi- 
tion Ass'n  v.  Missouri  Pac.  Ry.  Co.,  42  Neb.  105,  60  N.  W.  330;  Coates  v. 
Railway  Co.,  61  Mo.  38. 

34  3  Hurl  &  N.  743. 

86  Thomp.  Neg.  p.  168. 

•e  Philadelphia  &  R.  R.  Co.  v.  Hendrickson,  SO  Pa.  St.  182. 


§150)  ANIMALS.  361 

The  right  of  recovery  for  injuries  caused  by  animals  rests  on  the 
same  basis  as  that  for  harm  done  by  any  other  dangerous  instru- 
mentality, and  the  gist  of  the  action  is,  in  every  instance,  negli- 
gence. If  a  man  negligently  permits  fire  to  escape  from  his  con- 
trol, to  the  damage  of  his  neighbor's  property,  he  is  liable;  and  if 
he  negligently  permits  his  bull,  confessedly  dangerous,  to  escape 
from  the  pasture,  and  gore  his  neighbor,  the  latter  may  recover 
therefor.  When  the  instrumentality  is  admittedly  dangerous,  no 
difficulty  arises.  Hence  there  is  little  controversy  where  the  harm 
is  done  by  animals  terse  nature.  It  is  a  matter  of  common  knowl- 
edge that  animals  of  this  class,  following  their  natural  instincts, 
are  liable  to  do  mischief  to  those  with  whom  they  come  in  contact. 
Against  the  owners  of  such  animals  a  conclusive  presumption  arises 
of  knowledge  as  to  the  disposition  and  characteristics  of  that  spe- 
cies.1 And  if  such  animals  as  bears,  monkeys,  lions,  etc.,  are  per- 
mitted to  run  at  large,  or  are  left  in  a  place  where  they  may  do 
injury,  a  presumption  of  negligence  arises.2  And  it  would  seem 
that  this  presumption  has  in  some  cases  been  held  conclusive,  the 
court  sajung  in  one  instance,  ''The  gist  of  the  action  is  the  keep- 
ing the  animal  after  knowledge  of  its  mischievous  propensities."  3 
But  this  conclusion  is  not  supported  by  reason  or  analogy.  If  a 
person  lawfully  keeps  a  wild  animal  for  a  useful  purpose,  his  obli- 
gation to  so  confine  it  that  it  cannot  injure  other  people  is  not 
greater  or  otherwise  than  it  is  in  the  case  of  fire,  or  any  other  dan- 
gerous instrumentality.  And  it  is  therefore  believed  that  the  gist 
of  the  action  for  injuries  caused  by  a  wild  beast  or  by  any  con- 
fessedly dangerous  animal,  whether  the  injury  is  inflicted  while 
the  animal  is  confined  or  at  large,  is  negligence  on  the  part  of  its 
owner  or  keeper.4  And  it  has  been  held  that  no  recovery  can  be 
had  against  the  owner  of  a  savage  dog,  kept  for  the  protection  of 

§  150.  iBesozzi  v.  Harris,  1  Fost.  &  F.  92  (injuries  by  a  bear,  previously 
tame  and  inoffensive);  May  v.  Burdett,  9  Q.  B.  101  (a  mischievous  monkey). 

2  Id. 

s  May  v.  Burdett,  9  Q.  B.  101;  Brown  v.  Carpenter,  26  Vt.  638;  Van 
Leuven  v.  Lyke,  1  N.  Y.  515;  Scribner  v.  Kelley,  38  Barb.  (N.  Y.)  14.  And 
see  Shear.  &  R.  Neg.  (4th  Ed.)  §  629. 

*  Earl  v.  Van  Alstine,  8  Barb.  (N.  Y.)  630;  Scribner  v.  Kelley,  38  Barb. 
(N.  Y.)  14;  Laverone  v.  Mangianti,  41  Cal.  140;  Ulery  v.  Jones,  81  111.  403; 
Canefox  v.  Crenshaw,  24  Mo.  199. 


562  DANGEROUS    INSTRUMENTALITIES.  (Oh.   8 

the  household,  and  which  was  allowed  to  go  loose  in  the  yard  at 
night,  where  it  attacked  and  bit  the  plaintiff,  who  had  negligently 
entered  the  yard,  knowing  that  the  dog  was  loose,  and  inclined  to 
bite.5  One  may  not,  however,  place  a  dangerous  dog  in  a  position 
where  he  is  liable  to  do  harm  to  one  coming  innocently  on  his  prem- 
ises.6 The  utmost  that  can  be  said  of  the  conduct  of  one  who 
undertakes  to  exercise  restraint  upon  an  animal  confessedly  dan- 
gerous is  that  the  act  of  keeping  raises  a  presumption  of  negligence 
in  the  event  of  injury  caused  by  the  animal.7 

Control  of  Animals. 

The  right  of  action  for  injuries  caused  by  animals  lies  not  only 
against  the  owner,  but  equally  against  him  having  the  right  of 
control.8  Where  animals  are  the  subject  of  joint  ownership,  an 
action  for  injuries  caused  thereby  will  lie  against  either  or  both 
owners,  although  but  one  had  the  custody  or  actual  control  at  the 
time  of  the  injury.9  And  so,  if  the  defendant  had  the  right  of  con- 
trol, although  he  had  parted  with  the  possession  of  the  animal, 
he  is  none  the  less  liable  for  its  mischievous  acts.10  Where,  how- 
ever, the  animal  is  in  the  possession  of  a  bailee,  the  right  of  con- 
trol having  been  temporarily  suspended,  it  seems  that  the  action 
will  not  lie  against  the  ow^ner.11  A  person  may  be  liable  for  in- 
juries caused  by  an  animal  kept  by  him  contrary  to  the  wish  of 

o  Brock  v.  Copeland,  1  Esp.  203;  Woodbridge  v.  Marks,  17  App.  Div.  139, 
45  N.  Y.  Supp.  156. 

e  Sarch  v.  Blackburn,  4  Car.  &  P.  297;  Curtis  v.  Mills,  5  Car.  &  P.  489. 
Nor  even  to  a  trespasser  without  notice.  Loomis  v.  Terry,  17  Wend.  (N.  Y.) 
496. 

7  Earl  v.  Van  Alstine,  8  Barb.  (N.  Y.)  630. 

» Barnum  v.  Vandusen,  16  Conn.  200;  Lyons  v.  Merrick,  105  Mass.  71; 
Ward  v.  Brown,  64  111.  307;  Tewksbury  v.  Bucklin,  7  N.  H.  518. 

»  Oakes  v.  Spaulding,  40  Vt.  347.  Notice  of  vicious  propensities  of  dog  to 
one  of  several  joint  keepers  is  notice  to  all.  Hayes  v.  Smith,  8  Ohio  Dec. 
92. 

10  Marsh  v.  Jones,  21  Vt.  378. 

11  Tewksbury  v.  Bucklin,  7  N.  H.  518;    Rossell  v.  Cottom.  31  Pa.  St.  525; 
Eck  v.  Hocker,  75  111.  App.  641.     Liability  of  one  temporarily  harboring  a 
dog.     O'Donnell  v.   Pollock,  170   Mass.  441,  49  N.   E.   745;    Bush  v.   Wathen 
(Ky.)  47  S.  W.  599.     Sufficiency  of  evidence  of  harboring.     Boylan  v.  Everett, 
172  Mass.  453,  52  N.  E.  541;   Plurniner  v.  Ricker  (Vt.)  41  Atl.  1045. 


§    151)  DOMESTIC    ANIMALS. 

the  owner,18  or  habitually  harbored,  regardless  of  any  question  of 
ownership.13 

SAME— DOMESTIC  ANIMALS. 

151.  In  order  to  charge  the  owner  of  animals  not  confess- 
edly dangerous  for  damage  done  by  them,  it  is  es- 
sential to  allege  and  prove  that  he  had  notice  of 
such  harmful  propensities,  and  that,  knowing  this, 
he  negligently  permitted  the  injury  to  be  inflicted.1 

Domestic  animals,  or  those  niansuetse  naturse,  under  the  common 
law,  were  those  in  which  an  absolute  property  right  might  be  vested, 
but  the  term  is  now  used  to  indicate  those  species  of  animals  useful 
to  man  which,  either  by  nature  or  successive  generations  of  cap- 
tivity, have  come  to  be  generally  regarded  as  peaceable  and  harm- 
less, including  horses,2  cattle,3  bees,4  dogs,6  etc. 

Scienter. 

To  establish  knowledge  on  the  part  of  the  owner  of  the  danger- 
ous character  of  the  animal,  it  is  sufficient  to  prove  facts  which 
would  indicate  a  vicious  or  dangerous  disposition  to  a  person  of 
ordinary  observation  and  prudence.6  Nor  is  it  essential  that  pre- 
vious instances  of  injury  or  viciousness  should  be  numerous;  three,7 

12  Mitchell  v.  Chase,  87  Me.  172,  32  Atl.  867. 

is  Bundschuh  v.  Mayer,  81  Hun,  111,  30  N.  Y.  Supp.  622;  Shulz  v.  Grif- 
fith, 103  Iowa,  150,  72  N.  W.  445,  40  Lawy.  Rep.  Ann.  117. 

§  151.  iWormley  v.  Gregg,  65  111.  251;  Vrooinan  v.  Lawyer,  13  Johns. 
(N.  Y.)  339;  Earl  v.  Van  Alstine,  8  Barb.  (N.  Y.)  630;  Van  Leuven  v.  Lyke, 
1  N.  Y.  515;  Marsh  v.  Jones,  21  Vt.  378;  Norris  v.  Warner,  59  111.  App.  300; 
Short  v.  Bohle,  64  Mo.  App.  242,  2  Mo.  App.  Rep'r,  1103. 

2  Cox  v.  Burbidge,  13  C.  B.  (N.  S.)  430. 

3  Vrooman  v.  Lawyer,  13  Johns.  (N.  Y.)  339. 

4  Earl  v.  Van  Alstine,  8  Barb.  (N.  Y.)  630. 

B  Perkins  v.  Mossman,  44  N.  J.  Law,  579;  Woolf  v.  Chalker,  31  Conn. 
121;  Fairchild  v.  Bentley,  30  Barb.  (N.  Y.)  147. 

« Kittredge  v.  Elliott,  16  N.  H.  77;  Linnehan  v.  Sampson,  126  Mass. 
506;  Cockerham  v.  Nixon,  33  N.  C.  269;  Hayes  v.  Smith,  8  Ohio  Dec.  92; 
Trinity  &  S.  Ry.  Co.  v.  O'Brien  (Tex.  Civ.  App.)  46  S.  W.  389. 

7  Wheeler  v.  Brant,  23  Barb.  (N.  Y.)  324;  Bauer  v.  Lyons,  23  App.  Div. 
205,  48  N.  Y.  Supp.  729. 


364  DANGEROUS    INSTRUMENTALITIES.  (Cll.    8 

two,8  or  even  one  9  instance  may  be  sufficient,  according  to  the  cir- 
cumstances or  the  nature  of  the  injury.10  The  previous  instances 
of  vicious  conduct  need  not  be  entirely  similar  to  the  one  for  which 
recovery  is  demanded.11  It  is  sufficient  if  the  previous  act  is  of 
such  a  character  as  to  reasonably  lead  to  the  belief  that  the  animal 
is  likely  to  do  harm;12  and  so  defendant's  knowledge  that  his  dog 
had  previously  attacked  sheep  would  impute  to  him  a  knowledge  of 
his  mischievous  nature  sufficient  to  establish  the  scienter  in  an 
action  for  injuries  caused  by  the  same  dog  biting  plaintiff's  horse.13 
In  an  action  for  worrying  sheep,  proof  that  the  same  dog  had  habit- 
ually attacked  men  and  hogs  was  held  competent.14  In  general, 
however,  evidence  of  this  nature  is  not  conclusive  of  knowledge, 
and  should  be  submitted  to  the  jury.15  And  it  was  so  held  in  an 
action  for  damage  done  to  plaintiff's  horse  by  a  bull,  evidence  be- 
ing received  of  a  previous  attack  by  the  bull  upon  a  man.16  But 
evidence  that  a  dog  habitually  bit  other  animals  will  not  support 
an  action  for  attacking  a  man.17  Nor  is  the  vicious  propensity 
of  a  dog,  established  by  proof  that  at  the  command  of  his  master 
he  was  accustomed  to  drive  trespassing  cattle  from  the  premises.18 
It  has  been  held  that  the  fact  that  a  dog  is  commonly  kept  confined 
is  evidence  from  which  the  jury  may  infer  knowledge  of  his  vicious 
character,19  but  it  is  submitted  that  this  proposition  would  hold 

s  Buckley  v.  Leonard,  4  Denio  (N.  Y.)  500;  McConnell  v.  Lloyd,  9  Pa.  Super. 
Ct.  25,  43  Wkly.  Notes  Cas.  245. 

»Loomis  v.  Terry,  17  Wend.  (N.  Y.)  496;  Kittredge  v.  Elliott,  16  N.  H. 
77;  Woolf  v.  Chalker,  31  Conn.  131. 

10  Tupper  v.  Clark,  43  Vt.  200. 

11  Pickering  v.  Orange,  2  111.  338,  492;   Kittredge  v.  Elliott,  16  N.  H.  77. 

12  McCaskill  v.  Elliot,  5  Strob.  (S.  C.)  196;    Byrne  v.  Morel  (Ky.)  49  S.  W. 
193. 

is  Jenkins  v.  Turner,  1  Ld.  Raym.  109.  See,  also,  Hartley  v.  Harriinan, 
1  Holt,  N.  P.  617. 

i*  Pickering  v.  Orange,  2  111.  338,  492. 

is  Turner  v.  Craighead,  83  Hun,  112,  31  N.  Y.  Supp.  369. 

leCockerham  v.  Nixon,  33  N.  C.  269. 

IT  Keigbtlinger  v.  Egan,  65  111.  235. 

is  Spray  v.  Ammermau,  66  111.  309. 

i»Goode  v.  Martin,  57  Md.  606;  Flansburg  v.  Basin,  3  111.  App.  531; 
Godeau  v.  Blood.  52  Vt.  251;  Warner  v.  Chamberlain,  7  Houst.  18,  30  Atl. 
638. 


§    151)  DOMESTIC    ANIMALS.  365 

good  only  in  the  event  that  no  other  satisfactory  explanation  for 
the  confinement  was  forthcoming.  When  it  appears  that  the  ani- 
mal was  well  known  to  be  of  a  fierce  and  dangerous  disposition,  it 
is  not  always  necessary  to  point  out  previous  instances  of  actual 
injury  to  sustain  an  action  for  damage  committed  by  it.20 

The  knowledge  of  the  servant  becomes  notice  to  the  master  only 
where  the  former  occupies  a  position  making  his  admissions  bind- 
ing on  the  latter.21 

Contributory  Negligence. 

The  fact  that  plaintiff  was  a  technical  trespasser  on  the  premises 
where  he  was  injured  will  not  prevent  his  recovery.22  To  sustain 
the  defense  of  contributory  negligence,  the  fault  of  the  complaining 
party  must  have  been  a  naturally  proximate  cause  of  the  injury,23 
and  so  it  was  held  that  one  who  wrrongfully  enters  a  yard,  and  is 
injured  by  a  dog  kept  there  for  the  purpose  of  protection,  cannot 
recover.24  It  is  doubtless  imprudent  to  step  on  a  dog's  tail,  but  is 
not  necessarily  such  negligence  on  the  part  of  plaintiff  as  will  pre- 
vent his  recovery  for  a  consequent  bite.25  As  one  may  rightfully 
assume  that  a  vicious  dog  will  not  be  allowed  to  run  at  large,  it  is 
not  negligence  in  a  parent  to  permit  his  child  to  play  with  a  strange 
<3og  on  the  street,  nor  for  a  person  to  tread  on  a  dog's  toes.26  But 
one  who  deliberately  kicks,  teases,  or  abuses  a  dog  cannot  legally 
complain  if  he  is  consequently  injured.27 

20  Earhart  v.  Youngblood,  27  Pa.  St.  331;    Flansburg  v.  Basin,  3  111.  App. 
531;    Curtis  v.  Mills,  5  Car.  &  P.  489;    Rider  v.  White,  65  N.  Y.  54. 

21  Jeffrey  v.  Bigelow,  13  Wend.  (N.  Y.)  518;    Clowdis  v.  Irrigation  Co.,  118 
Cal.   315,   50   Pac.   373;     Friedinann  v.   McGowan   (Del.    Super.)    42   Atl.    723; 
Brown   v.    Green    (Del.    Super.)    42  Atl.    991;     Baldwin   v.    Casella,    L.    R.     7 
Exch.  325.     And  see  Applebee  v.  Percy,  L.  R.   9  C.  P.  647. 

22  Marble  v.  Ross,  124  Mass.  44;    Woolf  v.  Chalker,  31  Conn.  121;    Loomis 
v.   Terry,    17   Wend.    (N.   Y.)    496;    Rider   v.   White,    65   N.    Y.    54;     Shulz    v. 
Griffith.  103  Iowa,  150,  72  N.  W.  445,  40  Lawy.  Rep.  Ann.  117. 

23  ghehan  v.  Cornwall,  29  Iowa,  99. 

z*  Sarch  v.  Blackburn,  4  Car.  &  P.  297.  And  see  Buckley  v.  Gee,  55  111. 
App.  388. 

25  Woolf  v.  Chalker,  31  Conn.  121. 

26  Smith  v.  Pelah,  2  Strange,  1264. 

27  Keightlinger  v.  Egan,  65  111.  235;    Bush  v.  Wathen  (Ky.)  47  S.  W.  599. 


366  DANGEROUS    INSTRUMENTALITIES.  (Cll.   8 


SAME— COMMUNICATING  DISEASE. 

152.  In  the  absence  of  statute,  a  person  may  keep  diseased 
animals  upon  his  own  land  without  subjecting  him- 
self to  liability  for  communicating  the  disease  to 
the  healthy  animals  of  his  adjoining  neighbor.1 

This  is  but  an  extension  of  the  rule  that  sanctions  the  unqualified 
use  of  one's  own  premises  for  any  legitimate  purpose,  provided  such 
use  stops  short  of  being  a  nuisance.  And  one  may  keep  diseased 
animals  as  above  stated,  although  he  has  knowledge  that  his  neigh- 
bor's healthy  animals  are  liable  to  come  upon  the  premises  and 
suffer  infection,  provided  such  neighbor  is  warned  of  the  danger.2 
It  would  be  otherwise,  however,  if  he  negligently  permitted  his  dis- 
eased cattle  to  transmit  the  disease  by  coming  in  contact  with 
other  cattle  outside  his  premises.3  And  it  is  a  general  rule  that  the 
owner  of  diseased  animals  is  liable  for  their  transmission  of  the 
disease  while  they  are  trespassing,  whether  such  owner  has  knowl- 
edge of  their  condition  or  not.4  But  in  such  case  the  scienter  may 
be  proved,  although  not  pleaded,  to  enhance  the  damages.5  So, 
also,  where  contagion  and  injury  result  from  reliance  on  misrepre- 
sentations made  by  the  owner  of  diseased  animals,  recovery  may  be 
had;  as  where  the  owner  of  land  upon  which  a  licensee  had  pastured 
diseased  sheep  relied  upon  the  misrepresentations  of  the  latter  that 
the  pasture  was  free  from  contagion.6 

In  the  sale  of  infected  animals  the  rule  of  caveat  emptor  applies,7 
unless  the  buyer  wras  misled  or  put  off  his  guard  either  by  misrepre- 
sentation or  fraud.8 

§  152,     iFisher  v.  Clark,-  41  Barb.  (N.  Y.)  329. 

2  Walker  v.  Herron,  22  Tex.  55;    Fisher  v.  Clark,  41  Barb.  (N.  Y.)  329. 

3  Earp  v.  Faulkner,  34  Law  T.  (N.  S.)  284;    Fultz  v.  Wycoff,  25  Ind.  321; 
Hite  v.  Blandford,  45  111.  9;    Grimes  v.  Eddy,   126  Mo.   168,   28   S.   W.   756. 
And  see,  also,  Selvege  v.  Railway  Co.,  135  Mo.  163,  36  S.  W.  652;    Croff  v. 
Cresse.  7  Okl.  408,  54  Pac.  558. 

4  Barnum  v.  Vandusen,  16  Conn.  200;   Anderson  v.  Buckton,  1  Strange,  192. 
e  Barnum  v.  Vandusen,  16  Conn.  200. 

e  Eaton  v.  Winnie,  20  Mich.  157. 
7  Hill  v.  Balls,  2  Hurl.  &  X.  299. 
s  Mullett  v.  Mason,  L.  R.  1  C.  P.  559. 


§    153)  FIREARMS.  367 


FIREARMS. 

153.  The  bearer  of  loaded  firearms  is  bound  to  exercise  the 
utmost  diligence  in  their  handling,  and  he  is  liable 
for  any  injury  caused  by  their  discharge,  unless  it 
appear  that  he  was  entirely  without  fault.1 

The  degree  of  diligence  requisite  to  constitute  ordinary  care  is 
proportioned  to  the  danger  to  be  apprehended.  As  the  danger  to 
be  apprehended  from  the  possible  discharge  of  a  gun  directed  to- 
wards another  person  in  near  proximity  is  of  the  gravest  nature, 
— practically  a  certainty, — the  law  exacts  the  highest  degree  of  care 
of  the  person  handling  it.  Under  the  old  common-law  procedure 
an  action  for  trespass  vi  et  armis  did  not  admit  of  the  defense  of 
inadvertence  or  absence  of  intent.  To  relieve  himself  of  liability, 
the  defendant  was  obliged  to  show  that  the  injury  was  inevitable, 
and  occurred  without  the  slightest  fault  on  his  part;  and  it  wa& 
so  held  where  the  defendant,  a  soldier,  had  accidentally  shot  a 
comrade  while  exercising,2  and  likewise  where  defendant's  gun  was 
accidentally  discharged  in  some  unexplained  manner,  and  killed 
plaintiff's  mare.3  And  where  defendant,  drawing  a  pistol  in  a 
crowded  room,  accidentally  discharged  it,  and  killed  plaintiff's 
husband,  it  was  held  that  the  circumstances  brought  the  action 
within  the  statute  providing  civil  damages  for  death  caused  by 
"willful  neglect."  *  But  one  using  firearms  in  a  wilderness  need 
not  exercise  the  same  extreme  care  required  in  a  populous  neigh- 
borhood; 5  although  a  hunter  may  be  liable  for  shooting  another, 

§  153.  i  Morgan  v.  Cox,  22  Mo.  373;  Seltzer  v.  Saxton,  71  111.  App.  229; 
Chaddock  v.  Tabor,  115  Mich.  27,  72  N.  W.  1093.  Necessity  of  averment 
of  absence  of  contributory  negligence  of  plaintiff.  Kleineck  v.  Reiger  (Iowa> 
78  N.  W.  39. 

2  Weaver  v.  Ward,  Hob.  134.  See,  also,  Underwood  v.  Hewson,  1  Strange, 
596. 

s  Tally  v.  Ayres,  3  Sneed  (Tenn.)  677.  And  see  Chataigne  v.  Bergeron,  10' 
La.  Ann.  699;  Castle  v.  Duryee,  *41  N.  Y.  169,  32  Barb.  (N.  Y.)  480. 

•i  Chiles  v.  Drake,  2  Mete.  (Ky.)  146,  154.  At  a  fox  hunt,  defendant  tried 
to  shoot  the  fox,  and  killed  plaintiff's  dog.  Wright  v.  Clark,  50  Vt.  130. 

5  Bizzell  v.  Booker,  16  Ark.  308.  And  see  People  v.  Chappell,  27  Mich. 
486,  for  construction  of  statute  as  to  negligent  use  of  firearms  in  MICHIGAN.. 


368  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

even  if  he  did  not  know  of  his  presence.6  One  who  negligently  dis- 
charges firearms  upon  or  near  the  highway  is  liable  for  resulting  in- 
juries, although  such  injuries  are  induced  by  fright,  and  are  not 
caused  by  the  missile;  as,  where  plaintiff's  horse  was  frightened 
by  the  report  of  a  gun,  and  ran  away,  and  broke  the  carriage.7  The 
extreme  rigor  of  the  foregoing  rule,  which  practically  holds  one 
liable  for  all  injuries  caused  by  a  firearm  while  in  his  possession 
or  under  his  control,  is  seen  in  an  English  case  decided  early  in 
the  present  century.  The  defendant,  having  occasion  to  use  his 
loaded  gun,  sent  his  servant  to  the  keeper  in  whose  possession  it 
was,  with  instruction  to  the  latter  to  remove  the  priming,  and 
send  it  by  the  servant.  The  priming  was  removed,  and  the  gun 
given  to  the  servant,  who  took  it  to  the  kitchen,  and,  knowing  that 
the  priming  had  been  removed,  aimed  it  in  sport  at  plaintiff's  child, 
when  it  was  discharged,  and  seriously  wounded  the  latter.  The 
latter  was  allowed  to  recover,  the  court  saying:  "*  *  *  And, 
though  it  was  the  defendant's  intention  to  prevent  all  mischief, 
and  he  expected  that  this  would  be  effectuated  by  taking  out  the 
priming,  the  event  has  unfortunately  proved  that  the  order  to  Leman 
was  not  sufficient.  Consequently,  as  by  this  want  of  care  the  in- 
strument was  left  in  a  state  capable  of  doing  mischief,  the  law  will 
hold  the  defendant  responsible."  8 

EXPLOSIVES. 

154.  The  degree  of  care  required  in  keeping  or  using  ex- 
plosives is  proportionate  to  the  danger  and  the  dam- 
age probably  resultant  on  their  explosion. 

One  who  keeps  nitroglycerine,  powder,  or  other  explosives  is  bound 
to  use  diligence  commensurate  with  the  danger  involved  in  the 
keeping;  and,  as  the  danger  may  increase  according  to  the  amount 
stored,  negligence  may  be  predicated  upon  the  quantity,  without  re- 
gard to  the  manner  in  which  it  is  protected.  And  it  has  accord- 
ingly been  held  erroneous  to  charge  that  the  defendant  is  not  liable 

e  Hankins  v.  Watkins,  77  Hun,  360.  28  N.  Y.  Supp.  867. 
7  Cole  v.  Fisher,  11  Mass.  137. 

s  Dixon  v.  Bell,  5  Maule  &  S.  198.  See,  also,  Babel  v.  Manning,  112  Mich. 
24,  70  N.  W.  327,  36  Lawy.  Rep.  Ann.  523. 


§  155)  POISONS.  269 

unless  it  is  found  that  the  manner  in  which  he  kept  the  explosive 
was  negligent.1  But  when  the  defendant  carrier  is  ignorant  of  the 
fact  that  he  is  carrying  a  dangerous  explosive,  he  is  chargeable  with 
ordinary  care  only.2  But  where  one  intrusts,  without  warning, 
to  the  care  of  another,  a  dangerous  substance  or  instrumentality, 
whose  true  nature  is  not  apparent,  he  is  liable  for  results  injurious 
to  the  bailee  or  third  persons.3  And  to  sustain  a  recovery  in  such 
circumstances  it  is  sufficient  to  show  that  the  defendant  had  knowl- 
edge of  the  dangerous  nature  of  the  substance,  while  the  bailee 
had  not.4  It  is  not  necessary  to  show  any  deception  on  the  part 
of  the  defendant.5 

POISONS. 

155.  A  very  high  degree  of  care  is  required  of  those  deal- 
ing in  or  handling  poisons. 

Apothecaries  and  others  dealing  in  or  handling  poisons  or  other 
mischievous  material  are  obligated  to  a  very  high  degree  of  care 
to  guard  against  any  injury  to  others  arising  from  their  use.  And 
if  one  sells  a  poisonous  substance,  which  he  has  negligently  mis- 
labeled,  thereby  causing  injury  to  a  third  person,  the  latter,  or  his 
personal  representatives,  may  recover  therefor.1  Or  if  a  person 
negligently  exposes  a  poison  under  such  circumstances  that  it  is 

§  154.  iHeeg  v.  Licht,  80  N.  Y.  579.  See.  also,  Mills  v.  Railway  Co.,  1 
Marv.  209.  40  Atl.  1114;  St.  Mary's  Woolen  Mfg.  Co.  v.  Bradford  Glycerine 
Co.,  14  Ohio  Cir.  Ct.  522,  7  Ohio  Dec.  582;  Kinney  v.  Koopman,  116  Ala. 
310,  22  South.  593;  Rudder  v.  Koopman,  116  Ala,  332,  22  South.  601;  Simon 
v.  Henry  (N.  J.  Sup.)  41  Atl.  692.  Joint  liability  for  injuries.  Prussak  v. 
Hutton.  30  App.  Div.  66,  51  N.  Y.  Supp.  761.  Injunction  to  restrain  keeping 
and  vending  of  dynamite  in  thickly-settled  community.  McDonough  v.  Roat, 
8  Kulp  (Pa.)  433. 

2  Parrot  v.  Wells,  Fargo  &  Co.,  15  Wall.  524. 

s  Farrant  v.  Barnes,  11  C.  B.  (N.  S.)  553;  Brass  v.  Maitland,  6  El.  &  Bl. 
470. 

*  Brass  v.  Maitland,  6  El.  &  Bl.  470;  Williams  v.  East  India  Co.,  3  East, 
192.  As  to  liability  of  vendor  of  explosive  oil  under  MASSACHUSETTS  stat- 
ute, see  Hourigan  v.  Xowell,  110  Mass.  470. 

6  Farrant  v.  Barnes,  11  C.  B.  (N.  S.)  553. 

§  155.     iNorton  v.  Sewall,  106  Mass.  143;    Callahan  v.  Warne,  40  Mo.  131; 
Osborne  v.  McMasters,  40  Minn.  103,  41  N.  W.  543.     See,  also,  Wise  v.  Mor- 
gan (Tenn.  Sup.)  48  S.  W.  971. 
BAR.NEG.— 24 


370  DANGEROUS    INSTRUMENTALITIES.  (Ch.   8 

likely  to  do  harm  to  others,  he  is  responsible  for  the  consequences.2 
And  in  cases  of  this  class  it  is  not  essential  that  any  privity  exist 
between  the  negligent  person  and  the  one  who  was  injured.  In  the 
case  of  Thomas  v.  Winchester,3  a  manufacturer  and  dealer  in  vege- 
table extracts  was  sued  by  a  stranger  for  damages  suffered  by  the 
use  of  one  of  these  preparations  labeled  as  extract  of  dandelion,  a 
harmless  medicine,  but  which  was  in  fact  extract  of  belladonna,  a 
poison,  and  a  recovery  was  allowed.  But  liability  attaches  to  the 
manufacturer,  vendor,  or  custodian  of  poisons,4  spoiled  food,5  or 
materials  otherwise  dangerous,6  only  when  he  has  been  negligent.7 
And  so  where  a  manufacturer  used  a  dye,  reasonably  supposed  to 
be  harmless,  and  a  purchaser  of  cloth  colored  by  the  material  was 
poisoned  thereby,  the  latter  was  not  allowed  to  recover.8 

2  Crowhurst  v.  Board,  4  Exch.  Div.  5;    Kennedy  v.  Ryall,  67  N.  Y.  379. 

s  6  N.  Y.  397.     And  see  Osborne  v.  McMasters,  40  Minn.  103,  41  N.  W.  543. 

*  Walton  v.  Booth,  34  La,  Ann.  913  (sulphate  of  zinc  sold  as  Epsom  salts) ; 
Brown  v.  Marshall,  47  Mich.  576,  11  N.  W.  392;  Norton  v.  Sewall,  106  Mass. 
143;  Gwynn  v.  Duffield,  66  Iowa,  708,  24  N.  W.  523.  When  a  physician  on  a 
steamer  gave  calomel  instead  of  quinine,  the  natural  confusion  aboard  the 
ship  was  held  to  negative  negligence.  Allan  v.  Steamship  Co.,  132  N.  Y.  91, 
30  N.  E.  482. 

•  o  Craft  v.  Parker,  Webb  &  Co.,  96  Mich.  245,  55  N.  W.  812;  contaminated 
water,  Buckingham  v.  Water  Co.,  142  Pa.  St.  221,  21  Atl.  824. 

«  As  chloride  of  lime  stored  in  a  vessel.     Brass  v.  Maitland,  6  El.  &  Bl.  470. 

'  In  KENTUCKY  it  would  appear  that  the  liability  is  absolute,  regardless 
of  any  question  of  negligence.  Fleet  v.  Hollenkemp,  13  B.  Mon.  219. 

»  Gould  v.  Woolen  Co.,  147  Mass.  315,  17  N.  E.  531. 


§    156)  NEGLIGENCE    OF    ATTORNEYS,  PHYSICIANS,  ETC.  371 

» 

CHAPTER  IX. 

NEGLIGENCE  OF  ATTORNEYS,  PHYSICIANS,  AND  PUBLIC  OFFICERS. 

156.  Negligence  of  Attorneys. 

157.  Damage  Essential  to  Liability. 

158.  Negligence  of  Physicians. 

159.  Burden  of  Proof— Evidence — Pleading. 

160.  Negligence  of  Public  Officers— Governmental  Officers. 

161.  Ministerial  Officers. 

162.  Sheriffs  and  Constables. 

163.  Notaries  Public. 

164.  Clerks  of  Court  and  Registers  of  Deeds. 

NEGLIGENCE  OF  ATTORNEYS. 

156.  A  lawyer  is  liable  to  his  client  for  failure  to  possess 
such  reasonable  knowledge  of  the  law,  and  to  em- 
ploy such  diligence  in  its  application  to  the  matter 
in  hand,  as  is  common  among  members  of  the  legal 
profession  in  that  locality  in  similar  circumstances. 

"It  would  be  extremely  difficult  to  define  the  exact  limit  by  which 
the  skill  and  diligence  which  an  attorney  undertakes  to  furnish 
in  the  conduct  of  a  case  is  bounded,  or  to  trace  precisely  the  divid- 
ing line  between  that  reasonable  skill  and  diligence  which  appears 
to  satisfy  his  undertaking,  and  that  crassa  negligentia,  or  lata  culpa, 
mentioned  in  some  of  the  cases,  for  which  he  is  undoubtedly  re- 
sponsible. The  cases,  however,  which  have  been  cited  and  com- 
mented on  at  the  bar,  *  *  *  appear  to  establish,  in  general,  that 
he  is  liable  for  the  consequences  of  ignorance  or  nonobservance  of 
the  rules  of  practice  of  this  court,1  for  the  want  of  care  in  the  prepa- 
ration of  the  cause  for  trial,2  or  of  attendance  thereon  with  his  wit- 
nesses, and  for  the  mismanagement  of  so  much  of  the  conduct  of 

§  156.  iCaldwell  v.  Hunter,  10  Q.  B.  69,  83;  Bracey  v.  Carter,  12  Adol. 
&  E.  373.  Negligently  suffering  judgment  by  default.  Godefroy  v.  Jay,  7 
Bing.  413;  Hoby  v.  Built,  3  Barn.  &  Adol.  350. 

2  Or  bringing  an  action  in  a  court  not  having  jurisdiction.  Williams  v. 
Gibbs,  6  Xev.  &  il.  788;  Cox  v.  Leech,  1  C.  B.  (N.  S.)  617. 


372  NEGLIGENCE   OF   ATTORNEYS,  PHYSICIANS,  ETC.  (Ch.   9 

a  cause  as  is  usually  and  ordinarily  allotted  to  his  department  of 
the  profession;  whilst,  on  the  other  hand,  he  is  not  answerable 
for  error  in  judgment  upon  points  of  new  occurrence  or  of  nice  or 
doubtful  construction."  8 

The  attorney  is  not  bound  to  be  absolutely  accurate  or  exact,  or 
to  be  familiar  with  abstruse,  or  unusual,  or  new  points.*  "God  for- 
bid," said  the  learned  Chief  Justice  Abbott,  "that  it  should  be  im- 
agined that  an  attorney,  or  a  counsel,  or  even  a  judge,  is  bound  to 
know  all  the  law."  5  The  English  attorney  or  solicitor  is  essentially 
the  same  as  an  American  lawyer,  and  is  required  to  exercise  such 
diligence  as  is  common  with  members  of  good  standing  in  the  pro- 
fession, in  similar  circumstances.6  He  must  exercise  reasonable 
care  and  diligence  only,7  unless  there  has  been  an  express  stipula- 
tion for  a  higher  degree  of  care.8  It  follows  as  of  course  that  he 
cannot  be  liable  for  mistake  on  a  debatable  point,  not  yet  settled 
in  the  courts,  or  one  on  wrhich  reputable  and  well-informed  lawyers 

3  Tindal,  C.  J.,  In  Godefroy  v.  Dalton,  6  Bing.  460,  467.  An  action  for  pro- 
fessional negligence  will  not  lie  against  a  barrister.  Swinfen  v.  Chelrnsford, 
5  Hurl.  &  N.  890.  See,  also,  Malone  v.  Gerth,  100  Wis.  166,  75  N.  W.  972  -r 
Lawall  v.  Groman,  180  Pa.  St.  532,  37  Atl.  98. 

*  Godefroy  v.  Dalton,  6  Bing.  460;   Morrison  v.  Burnett,  56  111.  App.  129. 

6  In  Montriou  v.  Jefferys,  2  Car.  &  P.  113.  And  in  Pitt  v.  Yalden,  4  Bur- 
rows, 2060,  Lord  Mansfield  said:  "That  part  of  the  profession  which  is- 
carried  on  by  attorneys  is  liberal  and  reputable,  as  well  as  useful  to  the 
public,  when  they  conduct  themselves  with  honor  and  integrity;  and  they 
ought  to  be  protected  where  they  act  to  the  best  of  their  skill  and  knowl- 
edge. But  every  man  is  liable  to  error,  and  I  should  be  very  sorry  that  it 
should  be  taken  for  granted  that  an  attorney  is  answerable  for  every  error 
or  mistake.  *  *  *  A  counsel  may  mistake  as  well  as  an  attorney.  Yet 
no  one  will  say  that  a  counsel  who  has  been  mistaken  shall  be  charged  with 
the  debt.  *  *  *  Not  only  a  counsel,  but  judges,  may  differ,  or  doubt,  or 
take  time  to  consider.  Therefore  an  attorney  ought  not  to  be  liable  in  cases 
of  reasonable  doubt."  And  see  Laidler  v.  Elliott,  3  Barn.  &  C.  738. 

e  Kepler  v.  Jessupp,  11  Ind.  App.  241,  37  N.  E.  655;  Isham  v.  Parker,  3- 
Wash.  St.  755,  29  Pac.  835;  Holmes  v.  Peck,  1  R.  I.  242;  Stevens  v.  Walker, 
55  111.  151;  Wilson  v.  Russ,  20  Me.  421;  Stubbs  v.  Beene's  Adm'r,  37  Ala. 
627;  Gambert  v.  Hart,  44  Cal.  542. 

T  O'Barr  v.  Alexander,  37  Ga.  195;  Kepler  v.  Jessupp,  11  Ind.  App.  241,  37 
N.  E.  655;  Wilson  v.  Russ,  20  Me.  421;  Strodtinan  v.  Menard  Co.,  56  I1L 
App.  120;  Morrison  v.  Burnett,  56  111.  App.  129. 

s  Babbitt  v.  Burnpus,  73  Mich.  331,  41  N.  W.  417. 


§    156)  NEGLIGENCE    OF    ATTORNEYS.  373 

hold  conflicting  opinions.9  The  early  standard  acquitted  the  attor- 
ney if  he  acted  honestly,  and  to  the  best  of  his  ability,10  but  he  ia 
now  held  to  a  much  higher  degree  of  care  and  skill,  which  must, 
at  least,  compare  reasonably  with  that  of  good  practitioners  at  the 
same  bar.  He  has  accordingly  been  held  liable  in  the  following, 
among  many  other,  cases:  In  not  commencing  an  action  against 
a  debtor  in  failing  circumstances;11  or  in  time  to  avoid  a  bar  by 
the  statute  of  limitations;12  or  to  properly  conduct  an  appeal;13 
or  in  failing  to  notify  client  of  an  impending  tax  sale; 14  or  to  properly 
prepare  a  mechanic's  lien; 15  or  for  failure,  in  an  action  for  divorce,  to 
take  proper  and  customary  steps  to  prevent  the  decree  being  subse- 
quently opened;16  for  failing  to  observe  the  omission  of  the  word 
"hundred,"  usually  printed  in  the  form  of  writ,  and  to  insert  it, 
thereby  causing  the  loss  of  the  debt; 17  for  advising  his  client,  un- 
necessarily, to  relinquish  his  claim  for  the  reimbursement  of  money 
which  he  had  paid  out  as  surety.18  In  general,  in  an  action  to  re- 
cover for  professional  services,  any  evidence  of  negligence  or  want  of 
skill  in  conducting  the  case,  which,  by  reasonable  inference,  tended 

»  Watson  v.  Muirhead,  57  Pa.  St.  161;  Citizens'  Loan,  Fund  &  Savings 
Ass'n  v.  Friedley,  123  Ind.  143,  23  N.  E.  1075;  Potts  v.  Button,  8  Beav.  493; 
Taylor  v.  Gorman,  4  Ir.  Eq.  550;  Wilson  v.  Tucker,  3  Starkie,  154;  Drax 
v.  Scroope,  2  Barn.  &  Adol.  581;  Stannard  v.  Ullithorne,  10  Bing.  491.  And 
one  is  justified  in  relying  on  a  decision  of  the  supreme  court  of  his  state, 
so  long  as  it  is  not  overruled.  Marsh  v.  Whitmore,  21  Wall.  178;  Hastings 
v.  Halleck,  13  Cal.  204. 

10  Lynch  v.  Com.,  16  Serg.  &  R.  (Pa.)  368;    Crosbie  v.  Murphy,  8  Ir.  C.  L. 
301;    Gilbert  v.  Williams,  8  Mass.  51;    although  he  was  held  liable  for  gross 
negligence,  Baikie  v.  Chandless,  3  Camp.  17;    Elkington  v.  Holland,  9  Mees. 
&  W.  659.     Expression  of  opinion  as  to  the  amount  likely  to  be  realized  at 
judicial  sale  as  creating  liability.     Reumping  v.  Wharton   (Neb.)   76  N.   W. 
1076. 

11  Rhines'  Adm'rs  v.  Evans,  66  Pa.  St.  192. 

12  FOX  v.  Jones  (Tex.  App.)  14  S.  W.  1007;    King  v.  Fourchy,  47  La.  Ann, 
354,  16  South.  814;   Drury  v.  Butler,  171  Mass.  171,  50  N.  E.  527. 

is  Jamison  v.  Weaver,  81  Iowa,  212,  46  N.  W.  996. 

"  Wain  v.  Beaver,  161  Pa.  St.  605,  29  Atl.  114. 

IB  Joy  v.  Morgan.  35  Minn.  184,  28  N.  W.  237. 

is  Von  Wallhoffen  v.  Newcombe,  10  Hun  (N.  Y.)  236. 

IT  Varnum  v.  Martin,  15  Pick.  (Mass )  440. 

is  Cochrane  v.  Little,  71  Md.  323,  18  Atl.  698. 


374  NEGLIGENCE    OF   ATTORNEYS,  PHYSICIANS,  ETC.  (Cll.   9 

to  prejudice  the  client's  case,  is  admissible  in  defense,19  but  not  if 
the  carelessness  or  lack  of  skill  has  been  excused.20 

The  requisite  degree  of  care  and  skill  must  be  computed  by  com- 
parison in  similar  circumstances.21  "A  metropolitan  standard  is 
not  to  be  applied  to  a  rural  bar."  22  If  the  relation  of  client  and 
attorney  exists,  to  maintain  an  action  against  the  former  for  neg- 
ligence it  is  not  essential  that  the  service  was  performed  for  com- 
pensation; the  liability  may  be  incurred  even  if  the  service  was 
gratuitous.28 

In  the  examination  of  titles  due  diligence  should  be  observed, 
and  the  records  closely  scrutinized.  Mistakes  arising  from  failure 
in  this  respect,  as  failure  to  note  the  existence  of  an  incumbrance,24 
will  render  the  attorney  liable.25  He  is  likewise  liable  for  negligence 
in  preparing  and  recording  instruments.26 

i»  2  Greenl.  Ev.  §  143.  And  see,  also,  Caverly  v.  MeOwen,  123  Mass.  574; 
Huntley  v.  Bulwer,  6  Bing.  N.  C.  Ill;  Hopping  v.  Quin,  12  Wend.  (N.  Y.) 
517;  Weed  v.  Bond,  21  Ga.  195;  Bowman  v.  Tallman,  2  Rob.  (N.  Y.)  385; 
Lewis  v.  Samuel,  8  Q.  B.  685;  Hill  v.  Allen,  2  Mees.  &  W.  283;  Newman  v. 
Schueck,  58  111.  App.  328;  Struckmeyer  v.  Lamb,  64  Minn.  57,  65  N.  W.  930. 

20  Gleason  v.  Kellogg,  52  Vt.  14;    Can's  Ex'x  v.  Glover,  70  Mo.  App.  242. 

21  Hart  v.  Frame,  6  Clark  &  F.  193;    Stannard  v.  Ullithorne,  10  Bing.  491; 
Gambert  v.  Hart,   44   Cal.  542;    WTalpole's   Adm'r  v.   Carlisle,   32   Ind.   415; 
Bowman  v.  Tallman,  2  Rob.  (N.  Y.)  385;   Watson  v.  Muirhead,  57  Pa.  St.  161. 

22  Weeks,  Attys.  §  289;   Pennington's  Ex'rs  v.  Yell,  11  Ark.  212. 

2  s  Donaldson  v.  Haldane,  7  Clark  &  F.  762.  But  erroneous  advice  given 
offhand  to  a  stranger,  without  compensation,  does  not  carry  liability.  Fish 
v.  Kelly,  17  C.  B.  (N.  S.)  194.  Qne  falsely  holding  himself  out  as  an  attorney 
is  accountable  to  his  client  with  the  same  strictness  as  though  he  were  an  at- 
torney. Miller  v.  Whelan,  158  111.  544,  42  N.  E.  59. 

24  Pennoyer  v.  Willis  (Or.)  32  Pac.  57;    or  at  least  the  question  of  negli- 
gence will  be  for  the  jury,  Pinkston  v.  Arrington,  98  Ala.  489,  13  South.  561. 

25  Watson  v.   Muirhead,  57   Pa.   St.   161;    Gore  v.   Brazier,   3   Mass.   523; 
Sprague  v.  Baker,  17  Mass.  586;    Chase  v.  Heaney,   70  111.  268;    Byrnes  v. 
Palmer,  18  App.  Div.  1,  45  N.  Y.  Supp.  479. 

26  Stott  v.  Harrison,  73  Ind.  17;   Miller  v.  Wilson,  24  Pa.  St.  114;   preparing 
instruments,  Elkington  v.  Holland,  9  Mees.  &  W.  659;    White  v.  Reagan,  32 
Ark.  281. 


§    158)  NEGLIGENCE    OF    PHYSICIANS.  875 


SAME— DAMAGE  ESSENTIAL  TO  LIABILITY. 

157.  As  in  all  other  actions   for  negligence,  damage  prox- 

imately  resulting  from  the  carelessness  complained 
of  must  be  proved. 

To  sustain  an  action  for  negligence,  it  must  appear  reasonably 
certain  that,  had  due  diligence  and  skill  been  observed,  the  result 
would  have  been  more  favorable  to  the  client.1  Thus,  if  it  is 
claimed  that  the  attorney  failed  to  use  certain  facts  which  had 
been  communicated  to  him  by  the  client,  it  must  appear  that  they 
were  susceptible  of  proof,  and  that,  when  proved,  they  would  have 
varied  the  result.2  But  negligence  cannot  be  proved  by  the  opinion 
of  another  attorney.3  To  constitute  negligence  in  failing  to  take 
an  appeal,  it  must  appear  that,  had  it  been  taken,  it  would  have 
been  sustained.4 

The  measure  of  damages  is  the  amount  actually  lost  by  the  neg- 
ligence of  the  attorney.5 

Ordinarily,  the  question  of  negligence  is  for  the  jury,  under  proper 
instruction  from  the  court.6 

NEGLIGENCE  OF  PHYSICIANS. 

158.  The  implied  undertaking  of  a  physician  or  surgeon  is 

to  have  and  to  employ  such  reasonable  skill  and 
diligence  as  are  ordinarily  possessed  and  exercised 
in  the  profession  by  thoroughly  educated  physicians 
and  surgeons  in  the  particular  locality. 

§  157.  i  Although  -the  mere  fact  that  another  course  might  have  been  more 
advantageous  to  the  client,  is  no  proof  of  negligence,  it  appearing  that  the 
attorney  acted  in  good  faith.  Harriman  v.  Baird,  6  App.  Div.  518,  39  N.  Y. 
Supp.  592. 

2  Hastings  v.  Halleck,  13  Cal.  204. 

3  Gambert  v.  Hart,  44  Cal.  542. 

*  Hays  v.  Ewing,  70  Cal.  127,  11  Pac.  602. 

s  Dearborn  v.  Dearborn,  15  Mass.  316;  Huntington  v.  Rumnill,  3  Day  (Conn.) 
390;  2  Greenl.  Ev.  §  146;  Lawall  v.  Groman,  180  Pa.  St.  532,  37  Atl.  98. 

«  Pennington's  Ex'rs  v.  Yell,  11  Ark.  212;  Pinkston  v.  Arrington,  98  Ala. 
489,  13  South.  561;  Hunter  v.  Caldwell,  10  Q.  B.  69.  And  see  Gambert  v.  Hart, 
44  Cal.  542;  Abeel  v.  Swann,  21  Misc.  Rep.  677,  47  N.  Y.  Supp.  1088. 


376  NEGLIGENCE    OF    ATTORNEYS,   PHYSICIANS,   ETC.  (Ch.    9 

A  physician  may  make  a  special  contract  to  perform  an  absolute 
cure,1  but,  in  the  absence  of  such  agreement,  he  does  not  insure 
that  his  treatment  will  be  successful,  or  even  beneficial; 2  and  a 
failure  to  effect  a  cure  does  not  raise  a  presumption  of  want  of  skill 
or  failure  to  exercise  due  diligence.3  When,  however,  the  failure 
to  employ  ordinary  skill  and  diligence,  due  regard  being  had  to  the 
nature  of  the  ailment  and  the  standard  of  skill  in  the  locality,  re- 
sults harmfully  to  the  patient,  the  physician  is  liable  for  negli- 
gence.4 The  injury,  however,  need  not  be  physical;  actionable  neg- 
ligence may  be  predicated  on  an  incorrect  diagnosis,  although  treat- 
ment is  neither  asked  nor  given.5  Not  only  must  the  medical  prac- 
titioner use  ordinary  care  and  diligence,  but  he  must  be  possessed 
of  at  least  the  ordinary  skill  and  attainments  of  the  profession. 
It  has  accordingly  been  held  erroneous  to  instruct  a  jury  that  it  was 
"entirely  immaterial  to  the  inquiry  whether  defendant,  at  the  time 
he  undertook  the  reduction  of  the  dislocation,  was  or  was  not  re- 
puted to  be,  or  was  or  was  not,  a  skillful  surgeon";  the  court  saying 
that,  having  undertaken  a  matter  requiring  skill  and  care,  he  was 
liable  for  the  omission  to  exercise  it.6 

Although  the  law  does  not  require  the  highest  degree  of  skill 
and  science,7  yet  in  estimating  the  standard  of  due  care  regard  must 

§  158.  i  See  Leighton  v.  Sargent,  7  Fost.  (N.  H.)  460;  Van  Skike  v.  Potter, 
53  Neb.  28,  73  N.  W.  295.  But  an  undertaking  to  "set,  dress,  take  care  of,  and 
manage,  as  such  physician  and  surgeon,  said  broken  bone,  in  a  proper,  prudent, 
and  skillful  manner,"  is  not  a  contract  to  effect  a  cure.  Reynolds  v.  Graves, 
3  Wis.  416. 

2  Ewing  v.  Goode,  78  Fed.  442. 

»  Lawson  v.  Conaway,  37  W.  Va.  159,  16  S.  E.  564;  Wurdemann  v.  Barnes, 
92  Wis.  206,  66  N.  W.  111. 

«  Landon  v.  Humphrey,  9  Conn.  209;  Carpenter  v.  Blake,  60  Barb.  (N.  Y.) 
488;  McNevins  v.  Lowe,  40  111.  209;  Gramm  v.  Boener,  56  Ind.  497.  Actual 
injury  must  result  from  the  malpractice,  to  constitute  actionable  negligence. 
Ewing  v.  Goode,  78  Fed.  442. 

e  Harriott  v.  Plimpton,  166  Mass.  585,  44  N.  E.  992. 

e  Carpenter  v.  Blake,  60  Barb.  (N.  Y.)  488.  And  see  Cayford  v.  Wilbur,  86 
Me.  414,  29  Atl.  1117. 

7  Cayford  v.  Wilbur,  86  Me.  414,  29  Atl.  1117;  McCandless  v.  McWha,  22 
Pa.  St.  261,  approved  in  Smothers  v.  Hanks,  34  Iowa,  286;  Leighton  v.  Sargent, 
7  Fost.  (N.  H.)  460;  Peck  v.  Hutchinson,  88  Iowa.  320,  55  X.  W.  511;  McNev- 
ins v.  Lowe,  40  111.  209;  Wood  v.  Clapp,  4  Sneed  (Tenn.)  65;  Hewitt  v.  Eisen- 
bart,  36  Neb.  794,  55  N.  W.  252;  Lawson  v.  Conaway,  37  W.  Va.  159,  16  S.  E. 


§    158)  NEGLIGENCE    OF    PHYSICIANS.  377 

"be  had  to  the  advanced  stage  of  the  profession  at  the  time;  many 
of  the  methods  formerly  in  vogue — as  indiscriminate  and  extensive 
blood-letting — being  no  longer  recognized  by  legitimate  practition- 
ers. And  so  the  standard  of  ordinary  care  and  skill  may  vary,  even 
in  the  same  state,  according  to  the  greater  or  less  opportunity  af- 
forded by  the  locality  for  observation  and  practice,  from  which 
alone  the  highest  skill  can  be  acquired.8 

Errors  of  judgment  do  not  constitute  legal  negligence  in  the  prac- 
tice of  medicine,9  provided  they  are  not  made  on  a  point  which  is 
well  settled  in  the  profession.10  Nor  is  a  physician  in  general 
practice  liable  for  failure  to  call  in  a  specialist  to  treat  a  disease 
not  arising  from  his  lack  of  skill  in  handling  the  original  case.11 

The  different  "schools"  of  medicine  are  not  recognized  as  such 
in  the  courts.  All  systems  of  medicine  are  recognized  in  law,  and 
the  physician  is  required  to  regulate  his  practice  according  to  the 
system  which  he  elects  and  professes  to  follow.  Thus  the  requisite 
•degree  of  care  and  skill  required  of  a  homeopathic  physician  must 
be  estimated  according  to  the  precepts  and  standards  of  that 
school,12  and  evidence  to  prove  that  defendant's  treatment  of  a  case 
»vas  according  to  the  botanic  system  of  practicing  medicine,  which 
he  professed  and  was  known  to  follow,  is  admissible.13  It  is  true, 

564;  Tefft  v.  Wilcox.  6  Kan.  46.  And  see  Carpenter  v.  Blake,  60  Barb.  (N.  Y.) 
488;  Degnan  v.  Ransom,  83  Hun,  267,  31  N.  Y.  Supp.  966. 

s  Smothers  v.  Hanks,  34  Iowa,  286;  Hewitt  v.  Eisenbart,  36  Neb.  794,  55 
:N.  W.  252;  Peck  v.  Hutchinson,  88  Iowa,  320,  55  N.  W.  511;  Whitesell  v.  Hill 
Uowa)  66  X.  W.  894;  Pelky  v.  Palmer,  109  Mich.  561,  67  N.  W.  561;  McCracken 
v.  Smathers,  122  N.  C.  799,  29  S.  E.  354. 

»  McClallen  v.  Adams,  19  Pick.  (Mass.)  333.  And  see  Twombly  v.  Leach,  11 
•Cush.  (Mass.)  397.  That  information,  and  not  treatment,  was  requested,  will 
not  excuse  physician  for  mistaken  diagnosis.  Harriott  v.  Plimpton,  166  Mass. 
585,  44  X.  E.  992. 

10  Carpenter  v.  Blake,  60  Barb.  (N.  Y.)  488:   Patten  v.  Wiggin,  51  Me.  594. 

11  Jones  v.  Vroom,  8  Colo.  App.  143,  45  Pac.  234. 

12  Force  v.   Gregory,   63   Conn.   167,   27   Atl.    1116.     And    see   Buruham   v. 
Jackson,  1  Colo.  App.  237,  28  Pac.  250;    Martin  v.  Courtney  (Minn.)  77  X.  W. 
S13. 

is  Bowman  v.  Woods,  1  G.  Greene  (Iowa)  441;  Com.  v.  Thompson,  6  Mass. 
134;  Patten  v.  Wiggin,  51  Me.  594;  fractures  near  elbow  joint,  Wilmot  v. 
Howard,  39  Vt.  447;  fractures  near  shoulder,  Baird  v.  Morford,  29  Iowa,  531; 
fractures  near  wrist,  Smothers  v.  Hanks,  34  Iowa,  286;  Ritchey  v.  West,  23 


378  NEGLIGKXCE    OF    ATTORNEYS,   PHYSICIANS,   ETC.  (Cll.    9 

however,  that  certain  principles  of  medicine  are  so  well  known  and 
universally  received  that  to  ignore  them  would  be  negligence  in 
law,  no  matter  what  the  practice  might  be  in  the  particular  school 
to  which  the  physician  might  belong.14 

The  right  of  the  state  to  provide  rules  and  tests  for  ascertain- 
ing the  qualifications  of  applicants  for  authority  to  practice  medi- 
cine is  a  proper  exercise  of  the  police  power,  which  is  constantly 
used  by  the  legislatures.  Such  statutes  do  not  modify  the  laws  of 
negligence  as  applied  to  those  licensed  to  practice  thereunder;  and 
if  a  person,  acting  as  a  medical  practitioner,  is  guilty  of  malprac- 
tice, he  is  none  the  less  liable  because  he  has  not  conformed  with 
the  law.16 

SAME— BURDEN  OF  PROOF— EVIDENCE— PLEADING. 

159.  The  burden  of  proving  the  essential  elements  of  neg- 
ligence rests  on  the  plaintiff  in  cases  of  malpractice, 
as  in  all  other  actions  of  a  similar  nature. 

111.  385;  Scudder  v.  Crossan,  43  Ind.  343;  Stevenson  v.  Gelsthorpe,  10  Mont. 
563,  27  Pac.  404;  fractures  near  ankle,  Almond  v.  Nugent,  34  Iowa,  300;  and 
generally  as  to  fractures,  Young  v.  Mason,  8  Ind.  App.  264,  35  N.  E.  521; 
Gedney  v.  Kingsley,  62  Hun,  620,  16  N.  Y.  Supp.  792;  dislocation,  Carpenter 
v.  Blake,  60  Barb.  (N.  Y.)  488;  "Colics'  fracture,"  Link  v.  Sheldon,  136  N.  Y. 
1.  32  N.  E.  696;  amputation,  Alder  v.  Buckley,  1  Swan  (Tenn.)  69;  Howard  v. 
Grover,  28  Me.  97.  One  of  the  most  celebrated  malpractice  cases,  in  which  the 
alleged  malpractice  consisted  in  opening  an  abscess,  is  Walsh  v.  Sayre,  52  How. 
Prac.  (N.  Y.)  335.  Failure  to  discover  serious  rupture  of  perineum,  Lewis  v. 
Dwinell,  84  Me.  497,  24  Atl.  945;  obstetric  cases,  Gcannis  v.  Brandeu,  5 
Day  (Conn.)  260  ;  frost  bite,  Kay  v.  Thomson,  10  Am.  Law  Reg.  (N.  S.)  594; 
Patten  v.  Wiggin,  51  Me.  594;  liability  of  hospital  physician  for  nurse,  Perio- 
nowsky  v.  Freeman,  4  Fost.  &  F.  977;  vaccination,  Landon  v.  Humphrey,  91 
Conn.  209;  felons,  Twombly  v.  Leach,  11  Cush.  (Mass.)  397;  erysipelas,  Coch- 
ran  v.  Miller,  13  Iowa,  128;  medical  cases,  Peck  v.  Martin,  17  Ind.  115;  Com. 
v.  Thompson,  6  Mass.  134;  Rex  v.  Long,  4  Car.  &  P.  398-423;  liability  of  one 
holding  himself  out  as  a  physician,  Matthei  v.  Wooley,  69  111.  App.  654. 

i*  As  failure  to  remove  the  placenta  after  childbirth.  Lynch  v.  Davis,  12 
How.  Prac.  (N.  Y.)  323;  Moratzky  v.  Wirth,  67  Minn.  46.  69  N.  W.  480. 

is  Ruddock  v.  Lowe,  4  Fost.  &  F.  519,  note  a,  p.  521;  Jones  v.  Fay,  Id.  525, 
note  a,  p.  526.  As  to  diploma  as  evidence  of  competency  under  statute  and  at 
common  law.  see  Stough  v.  State,  88  Ala.  234,  7  South.  150;  Townsheud  v. 
Gray,  62  Vt.  373,  19  Atl.  635. 


§    160)  NEGLIGENCE    OF    PUBLIC    OFFICERS.  379 

Burden  of  Proof. 

When  the  ignorance  or  lack  of  skill  of  the  defendant  is  alleged,  it 
must  be  proved.1  In  such  cases  proof  of  general  skill  is  admissibler 
but  ordinarily,  where  the  issue  is  upon  the  treatment  of  a  particular 
case,  such  evidence  is  not  competent  for  the  defense.2 

Evidence, 

Contributory  negligence,  either  by  way  of  pre-existing  bodily  con- 
ditions or  failure  to  follow  the  directions  of  the  defendant,  is  al- 
ways proper  matter  of  defense, — as  the  failure  to  keep  an  injured 
limb  in  a  state  of  perfect  quiet,  thereby  retarding  or  preventing  re- 
covery; 3  or  the  excessive  use  of  alcoholic  stimulants  within  a 
period  not  too  remote  to  influence  the  patient's  recovery.* 

Pleading. 

It  is  not  essential  that  the  complaint  specifically  allege  negligence 
if  the  facts  set  out  will  fairly  warrant  no  other  conclusion  than  a 
lack  of  ordinary  care  and  skill.5 

NEGLIGENCE  OF  PUBLIC  OFFICERS— GOVERNMENTAL 

OFFICERS. 

160.  Governmental  officials  are  responsible  only  to  the 
public  at  large,  and  their  negligent  acts  in  the  per- 
formance of  their  duties  cannot  become  the  subject 
of  private  actions. 

For  purposes  of  convenience  public  officials  may  be  separated  into 
two  general  groups  or  classes:  Those  who  serve  the  public  col- 
lectively as  a  body,  and  those  who  serve  the  public  distributively 

§  159.  i  Scudder  v.  Crossan,  43  Ind.  343;  Kendall  v.  Brown,  86  111.  387. 
And  see  Pelky  v.  Palmer,  109  Mich.  561,  67  N.  W.  561;  Ewing  v.  Goode,  78 
Fed.  442.  In  Iowa  the  burden  of  proof  appears  to  be  on  plaintiff  to  prove  his 
freedom  from  contributory  negligence.  Whitesell  v.  Hill,  66  N.  W.  894. 

2  Holtzman  v.  Hoy,  118  111.  534,  8  N.  E.  832;    Mertz  v.  Detweiler,  8  Watts 
&  S.  (Pa.)  376;    Lacy  v.  Kossuth  Co.,  106  Iowa,  16,  75  N.  W.  689.     Admissi- 
bility  of  nonexpert  evidence.     Williams  v.  Nally  (Ky.)  45  S.  W.  874. 

3  Geiselman  v.  Scott,  25  Ohio  St.  86.     See,  also,  Whitesell  v.  Hill  (Iowa)  66 
N.  W.  894;  Richards  v.  Willard,  176  Pa.  St.  181,  35  Atl.  114. 

*  McCandless  v.  McWha,  25  Pa,  St.  95. 

5  Crowty  v.  Stewart,  95  Wis.  490,  70  N.  W.  558;  Williams  v.  Nally  (Ky.)  45 
S.  W.  874. 


380  NEGLIGENCE    OF    ATTORNEYS,   PHYSICIANS,  ETC.  (Ch.    9 

as  individuals.  Within  the  first  division  are  included  all  govern- 
mental officials,  both  legislative,  executive,  and  judicial,  with  all 
their  subordinates  and  agents  through  whom  the  functions  of  gen- 
eral government  are  performed.  Their  duties  are  administrative, 
and  are  performed  for  the  public  at  large.  They  enjoy  a  kind  of 
sovereignty.  Hence  the  acts  of  these  officers  as  agents  and  repre- 
sentatives of  the  government  cannot  be  made  the  subject  of  pri- 
vate actions  by  individuals  who  are  personally  aggrieved  or  injured 
thereby.  They  must,  however,  keep  within  the  limit  of  their  pow- 
ers, and  abstain  from  malicious  or  corrupt  acts.  With  this  proviso 
they  are  responsible  to  the  people  only l  by  public  impeachment. 
The  sovereignty  of  the  judiciary  reaches  even  further,  and  renders 
its  members  exempt  from  individual  redress  for  their  judicial  acts, 
although  they  may  be  conceived  in  oppression  and  corruption.2  But 
they  may  be  held  liable  in  a  civil  action  if  injury  results  from  an 
act  clearly  outside  their  jurisdiction.3  In  Houlden  v.  Smith  *  Pat- 
terson, J.,  said:  "Although  it  is  clear  that  the  judge  of  a  court  of 
record  is  not  answerable  at  common  law  in  an  action  for  an  er- 
roneous judgment,  or  for  the  act  of  any  officer  of  the  court  wrong- 
fully done,  *  *  *  yet  we  have  found  no  authority  for  saying 
that  he  is  not  answerable  in  an  action  for  an  act  done  by  his  com- 
mand and  authority  when  he  has  no  jurisdiction." 

SAME— MINISTERIAL  OFFICERS. 

161.  By  virtue  of  their  offices  the  law  raises  an  implied 
contract  between  ministerial  officials  and  those  in- 
dividuals whom  they  serve,  for  the  breach  of  which 
contract  they  become  liable. 

To  the  second  class  of  public  officers  belong  all  those  whose  du- 
ties are  purely  ministerial;  duties  simple  and  definite,  and  with  re- 
spect to  which  nothing  is  left  to  discretion.1  They  include  sheriffs 

§  160.  i  Wright  v.  Defrees,  8  Ind.  298;  Attorney  General  v.  Brown,  1  Wis. 
522. 

2  Bradley  v.  Fisher,  13  Wall.  335;   Rains  v.  Simpson,  50  Tex.  495. 

a  Bradley  v.  Fisher,  13  Wall.  335. 

*  14  Q.  B.  841. 

§  1G1.     i  Friedman  v.  Mathes,  8  Heisk.  (Tenn.)  488. 


§    162)  SHERIFFS    AND    CONSTABLES.  381 

and  constables,  notaries  public,  clerks  of  court,  and  recorders  of 
deeds.  These  officers  are  required,  by  statutes  governing  the  va- 
rious offices  which  they  fill,  to  perform  certain  designated  duties 
for  any  individual  who  may  have  occasion  to  resort  to  them,  paying 
any  statutory  fee  which  may  be  required  for  the  service  demanded. 
For  the  performance  of  these  duties  the  law  raises  an  implied  con- 
tract between  the  officer  and  the  individual,  and  the  latter  may  re- 
cover from  the  former  any  damages  he  may  suffer  from  the  failure 
of  the  officer  to  perform  the  required  duty. 

SAME— SHERIFFS  AND  CONSTABLES. 

163.  A  sheriff  is  liable  to  the  creditor  named  in  the  pro- 
cess for  any  damage  he  may  sustain  through  the 
failure  of  the  officer  to  exercise  reasonable  care  and 
diligence  in  its  execution. 

Compensatory  damages  cannot,  of  course,  be  recovered  without 
proof;  but  not  even  nominal  damages  can  be  recovered  if  it  clearly 
appears  that  no  actual  damage  was  suffered,1  although,  in  the  ab- 
sence of  proof  as  to  actual  damage,  nominal  damage  may  be  re- 
covered.2 

Liability  to  the  creditor  may  generally  be  predicated  upon  the 
failure  of  the  officer  to  use  ordinary  care  and  diligence  in  the  exe- 
cution of  any  valid  process.3  What  constitutes  reasonable  diligence 
depends  on  the  circumstances  of  the  case,  and  is  always  a  mixed 
question  of  law  and  fac.t.4  If  the  creditor  directs  immediate  serv- 
ice, informing  the  officer  of  the  danger  of  delay,5  greater  diligence 

§  162.     i  Wylie  v.  Birch,  4  Q.  B.  566. 

2  Humphrey  v.  Hathorn,  24  Barb.  (N.  Y.)  278;  Selfridge  v.  Lithgow,  2  Mass. 
374;  Bales  v.  Wingfleld,  4  Q.  B.  580,  note  a. 

a  Dorrance's  Adm'rs  v.  Com.,  13  Pa.  St.  160;  Wolfe  v.  Dorr,  24  Me.  104; 
Barnard  v.  Ward,  9  Mass.  269;  Peirce  v.  Partridge,  3  Mete.  (Mass.)  44;  Kitt- 
redge  v.  Bellows,  7  N.  H.  399;  Sherrill  v.  Shuford,  32  N.  C.  200;  Watkinson  v. 
Bennington,  12  Vt.  404;  Neal  v.  Price,  11  Ga.  297;  Chittenden  v.  Crosby,  5 
Kan.  App.  534,  48  Pac.  209;  Stiff  v.  McLaughlin,  19  Mont  300,  48  Pac.  232. 

*  Whitsett  v.  Slater,  23  Ala.  626. 

6  Tucker  v.  Bradley,  15  Conn.  46;  Smith  v.  Judkins,  60  N.  H.  127;  Peirce  v. 
Partridge,  3  Mete.  (Mass.)  44;  Eanlett  v.  Blodgett,  17  N.  H.  298;  Root  v. 
Wagner,  30  N.  Y.  9. 


382  NEGLIGENCE    OF    ATTORNEYS,  PHYSICIANS,  ETC.  (Ch.  9 

and  speed  is  necessary,  although,  in  general,  the  c-'ncer  may  exe- 
cute the  process  at  any  time  before  the  return  day.0  But  he  must 
make  a  true  return,7  and  within  the  allotted  time.8  No  right  of  ac- 
tion for  damages  accrues  to  the  individual  whose  property  or  per- 
son is  seized  under  execution  of  process,  whenever  it  appears  that 
the  writ  is  regular  on  its  face,  and  that  it  was  issued  by  a  court  of 
competent  jurisdiction  in  respect  to  the  subject-matter,9  provided 
the  writ  does  not  disclose  the  actual  want  of  jurisdiction  in  respect 
to  the  person.10 

Unlawful  Acts  of  Officer. 

But  for  conduct  under  a  defective  writ,  or  for  an  unauthorized  act, 
the  officer  becomes  liable  to  the  individual  against  whom  he  pro- 
ceeds; J1  as  for  unlawfully  breaking  into  a  person's  house  to  make 
a  levy.12  He  is  also  liable  when  he  makes  a  wrongful  seizure,13 

e  On  the  general  subject  of  diligence,  see  Parrott  v.  Dearborn,  104  Mass. 
104;  Crosby  v.  Hungerford,  59  Iowa,  712,  12  N.  W.  582. 

7  Barnard  v.  Leigh,  1  Starkie,  43;  Goodrich  v.  Starr,  18  Vt.  227;  Blair  v. 
Flack,  62  Hun,  509,  17  N.  Y.  Supp.  64. 

s  Hawkins  v.  Taylor,  56  Ark.  45,  19  S.  W.  305;  Atkinson  v.  Heer,  44  Ark. 
174,  followed  in  Wilson  v.  Young,  58  Ark.  593,  25  S.  W.  870.  By  statute, 
Humphrey  v.  Hathorn,  24  Barb.  (N.  Y.)  278;  Peck  v.  Hurlburt,  46  Barb. 
<N.  Y.)  559;  Jenkins  v.  McGill,  4  How.  Prac.  (N.  Y.)  205;  McGregor  v.  Brown, 
5  Pick.  (Mass.)  170.  But  at  common  law  he  was  not  liable  in  an  action  for 
failure  to  return  the  writ.  Com.  v.  McCoy,  8  Watts  (Pa.)  153;  Moreland  v. 
Leigh,  1  Starkie,  388.  The  writ  must  be  returned  to  the  proper  office.  Frink 
v.  Scovel,  2  Day  (Conn.)  480.  Inability  or  failure  to  serve  is  no  excuse  for  fail- 
ure to  return.  Kidder  v.  Barker,  18  Vt.  454;  Webster  v.  Quimby,  8  N.  H.  382. 

»  Goldis  v.  Gately,  168  Mass.  300,  47  N.  E.  96;  Muuns  v.  Loveland,  15  Utah, 
250,  49  Pac.  743.  See,  also.  Henline  v.  Keese,  54  Ohio  St.  599,  44  N.  E.  269, 
56  Am.  St.  Rep.  36;  Miller  v.  Hahn  (Mich.)  74  N.  W.  1051;  O'Briant  v.  Wilker- 
son,  122  N.  C.  304,  30  S.  E.  126;  Sears  v.  Lydon  (Idaho)  49  Pac.  122;  Johnson 
v.  Randall  (Minn.)  76  N.  W.  791;  State  v.  O'Neill  (Mo.  Sup.)  52  S.  W.  240. 
Invalidity  of  process  as  defense  by  officer  sued  for  failure  to  make  arrest. 
Belcher  v.  Sheehan,  171  Mass.  513,  51  N.  E.  19. 

10  Orr  v.  Box,  22  Minn.  485;    Savacool  v.  Boughton,  5  Wend.  (N.  Y.)  170. 

11  Cases  collected  in  McLendon  v.  State,  92  Tenn.  520,  22  S.  W.  200. 

12  Welsh  v.  Wilson,  34  Minn.  92,  24  N.  W.  327;   Thompson  v.  State,  3  Ind. 
App.  371,  28  N.  E.  996. 

is  Francisco  v.  Aguirre,  94  Cal.  180,  29  Pac.  495;  McAllaster  v.  Bailey,  127 
N.  Y.  583,  28  N.  E.  591;  Tillman  v.  Fletcher,  78  Tex.  673,  15  S.  W.  161;  Walker 
v.  Wonderlick,  33  Neb.  504,  50  N.  W.  445;  Rogers  v.  McDowell,  134  Pa.  St. 
424,  21  Atl.  166;  Harris  v.  Tenney,  85  Tex.  254,  20  S.  W.  82;  Allen  v.  Kirk, 


§    162)  SHERIFFS    AND    CONSTABLES.  383 

and  may  be  jointly  liable  with  his  deputy,14  or  with  the  plaintiff 
in  the  original  action.15  The  officer  may  also  be  liable  to  the  de- 
fendant for  subjecting  him  to  oppression  or  undue  hardship,16  or 
for  abusing  process.17  Liability  likewise  attaches  when  the  sheriff 
intentionally  takes  property  not  coyered  by  the  writ.  In  such  cases 
he  is  a  trespasser  ab  initio,  and  is  liable  for  all  consequences  of  an 
unlawful  entry  and  seizure.18  *  *  *  If  the  officer  levies  on  and 
sells  property  which  he  knows,  or  should  know,  is  exempt  under 
the  statute,  he  is  liable  to  the  debtor  therefor.18  The  presumption 
being  that  the  debtor  would  claim  the  privilege  of  exemption  be- 
fore sale,  an  officer  may,  in  general,  defend  an  action  for  failure  to 
levy  an  execution  on  the  ground  that  the  debtor  is  a  resident,  and 
that  his  property  did  not  exceed  in  value  the  amount  of  the  exemption 
allowed  by  statute.20 

Sufficient  Levy. 

It  is  the  duty  of  the  sheriff  to  exercise  sound  judgment  and  dis- 
cretion in  estimating  the  amount  of  property  necessary  to  realize 
the  demand  of  the  writ,  and  for  mistaken  judgment  in  this  respect 
he  is  liable  to  neither  the  creditor  nor  the  debtor,  if  the  levy  re- 
si  Iowa,  658,  47  N.  W.  906;  State  v.  Koontz.  83  Mo.  323;  Palmer  v.  McMas- 
ter,  10  Mont.  390,  25  Pac.  1056;  Whitney  v  Preston,  29  Neb.  243,  45  N.  W. 
619.  For  measure  of  damages,  see  Collins  v.  State,  3  Ind.  App.  542,  30  N.  E. 
12;  Mitchell  v.  Corbin,  91  Ala.  599,  8  South.  810. 

i*  Frankhouser  v.  Cannon,  50  Kan.  621,  32  Pac.  379;  Luck  v.  Zapp,  1  Tex. 
Civ.  App.  528,  21  S.  W.  418;  State  v.  Dalton,  69  Miss.  611,  10  South.  578. 

is  Jones  v.  Lamon,  92  Ga.  529,  18  S.  E.  423. 

is  Wood  v.  Graves,  144  Mass.  365,  11  X.  E.  567;  Baldwin  v.  Weed,  17  Wend. 
(N.  Y.)  224;  Page  v.  dishing,  38  Me.  523. 

IT  Holley  v.  Mix,  3  Wend.  (X.  Y.)  350. 

is  Grunberg  v.  Grant,  3  Misc.  Rep.  230,  22  N.  Y.  Supp.  747.  And  see  Wil- 
liams v.  Mercer,  139  Mass.  141,  29  N.  E.  540;  Armstrong  v.  Bell  (Ky.)  42  S. 
W.  1131;  Hyde  v.  Kiehl,  183  Pa.  St.  414,  38  Atl.  998;  Sharp  v.  Lamy  (Sup.) 
55  N.  Y.  Supp.  784;  Berwald  v.  Ray,  8  Pa.  Super.  Ct.  365,  43  Wkly.  Notes 
Cas.  217. 

i»  Whittington  v.  Pence  (Ky.)  38  S.  W.  843,  and  47  S.  W.  877.  And  see  Corry 
v.  Tate,  48  S.  C.  548,  26  S.  E.  794;  Parker  v.  Canfield  (Mich.)  74  N.  W.  296; 
Castile  v.  Ford,  53  Neb.  507,  73  N.  W.  945;  Second  Nat.  Bank  of  Monmouth  v. 
Gilbert,  174  111.  485,  51  N.  E.  584.  Duty  of  officer  to  acquaint  debtor  with 
exemption  rights.  State  v.  Lindsay,  73  Mo.  App.  473. 

20  Moss  v.  Jenkins,  146  Ind.  589,  45  N.  E.  789. 


384  NEGLIGENCE    OF    ATTORNEYS,   PHYSICIANS,   ETC.  (Ch.   9 

suits  in  a  deficiency  or  excess.21  But  the  burden  is  on  the  officer 
to  show  that  he  exercised  a  sound  discretion,  and,  if  there  is  suffi- 
cient property  of  the  debtor  at  hand  to  satisfy  the  debt,  the  officer 
will  be  prima  facie  liable  for  failure  to  make  a  sufficient  levy.22 
So,  likewise,  the  sheriff  or  other  officer  will  be  liable  to  the  debtor 
if  he  makes  an  excessive  levy,  when  the  value  of  the  property  is 
easily  ascertainable.23  The  mere  fact  that  the  property,  after  sei- 
zure, depreciates  in  value,  or  does  not  bring  sufficient  at  the  sale 
to  satisfy  the  debt,  will  not  support  a  charge  of  negligence  against 
the  officer  making  the  levy.24 

Negligence  in  Making  Sale. 

The  officer  must  sell  the  property  lawfully  taken  under  process 
with  reasonable  diligence  and  business  prudence,  and  in  accordance 
with  legal  requirements;  and,  if  he  omits  the  latter  in  any  respect, 
— as  the  posting  of  proper  notices  of  the  sale  of  real  estate,25 — he 
will  be  liable.  As  he  is  bound  to  make  the  sale  with  due  dili- 
gence,26 he  will  be  responsible  for  any  depreciation  in  the  value  of 
the  goods  consequent  on  a  negligent  delay.27  The  officer  also  ren- 
ders himself  liable  to  the  judgment  creditor  if  he  makes  any  varia- 
tion from  the  authorized  terms;  as  accepting  a  check  in  lieu  of 
cash.28 

Officer  as  Bailee. 

The  liability  of  the  sheriff  for  the  forthcoming  of  goods  levied  on 
by  him  is  similar  to  that  of  a  common  carrier,  and  unless  deprived 
of  the  goods  by  the  act  of  God,  inevitable  accident,  or  the  public 

21  Com.  v.  Lightfoot,  7  B.  Mon.  (Ky.)  298.     But  where,  there  being  abundant 
property  at  hand  to  satisfy  the  debt,  and  the  officer  failed  to  make  a  sufficient 
levy,  and  was  held  liable  for  his  negligence,  see  Adams  v.  Spangler,  17  Fed. 
133;  Ransom  v.  Halcott,  18  Barb.  (X.  Y.)  56;  Governor  v.  Powell,  9  Ala.  83. 

22  Ransom  v.  Halcott,  18  Barb.  (X.  Y.)  56;   Adams  v.  Spangler,  17  Fed.  133; 
Gilbert  v.  Gallup,  76  111.  App.  526.     But  see  Conway  v.  Magill,  53  Xeb.  370, 
73  X.  W.  702;   Smith  v.  Heineman  (Ala.)  24  South.  364. 

23  Holland  v.  Anthony,  19  R.  I.  216,  36  Atl.  2. 

2*  Governor  v.  Carter,  10  N.  C.  328;   Lynch  v.  Com.,  6  Watts  (Pa.)  495. 

25  Sexton  v.  Xevers,  20  Pick.  (Mass.)  451. 

26  Dorrance  v.  Com.,  13  Pa.  St.  160;   State  v.  Herod,  6  Blackf.  (Ind.)  444. 

27  Carlile  v.  Parkins,  3  Starkie,  163.     On  failure  to  make  sale  with  due  dili- 
gence (at  advertised  time),  he  may  become  a  trespasser  ab  initlo.    Bond  v. 
Wilder,  16  Vt.  393. 

28  Robinson  v.  Brennan,  90  X.  Y.  208. 


§    163)  NOTARIES    PUBLIC.  385 

enemy,  he  must  answer  for  them  in  a  proper  action.29  This  lia- 
bility is  of  very  ancient  origin,  and  founded  on  sound  public  policy.30 
The  officer  is  responsible  for  moneys  collected,  and  deposited  in  a 
solvent  bank,  which  afterwards  fails..31  He  is  likewise  liable  for  the 
escape  of  a  prisoner,  whether  the  negligence  or  fault  be  that  of 
himself  or  his  deputy.  For  the  loss  of  goods  attached  on  mesne 
process  there  is  authority  for  holding  that  ordinary  care  will  dis- 
charge the  officer  from  liability.32 

SAME— NOTARIES  PUBLIC. 

163.  A  notary  public  is  liable  for  any  loss  or  damage- 
caused  by  his  negligent  failure  to  properly  perform 
the  duties  strictly  pertaining  to  his  office. 

In  the  United  States  the  duties  of  a  notary  public  are  confined 
to  taking  acknowledgments  of  deeds  and  other  instruments  for 
the  purpose  of  entitling  them  to  record,  presenting  negotiable  in- 
struments, and  protesting  them  for  nonpayment,  administering 
oaths,  and,  in  many  states,  taking  depositions,  and  even  perform- 
ing the  marriage  ceremony.1.  As  these  acts  are  purely  ministerial 
and,  with  few  exceptions,  must  be  performed  in  exact  conformity 
with  governing  statutes,  these  officers  are  held  very  strictly  ac- 
countable for  a  diligent  and  skillful  performance  of  their  duties. 
Thus  the  requisites  of  a  formal  acknowledgment  of  a  deed  are,  a» 
a  rule,  fully  prescribed  by  statute,  and  it  is  inexcusable  careless- 
ness in  the  notary  to  omit  to  state  therein  that  the  person  making: 

29  Hartleib  v.  McLane's  Adm'rs,  44  Pa.  St.  510.  Cf.  Mitchell  v.  Com.,  3T 
Pa.  St.  187;  Chapman  v.  Reddick  (Fla.)  25  South.  673.  But  see,  as  to  a  lesser 
liability,  Eastman  v.  Judkins,  59  N.  H.  576;  Browning  v.  Hanford,  5  Hill 
(X.  Y.)  588.  For  criticism  of  latter  case,  see  Phillips  v.  Lamar,  27  Ga.  228- 
And  see  Gilmore  v.  Moore,  30  Ga.  628;  Bond  v.  Ward,  7  Mass.  123. 

so  Sly  v.  Finch,  Cro.  Jac.  514. 

si  Phillips  v.  Lamar,  27  Ga.  228,  criticising  Browning  v.  Hanford,  5  Hillf 
(N.  Y.)  591,  in  which  latter  case  the  sheriff  was  held  liable  for  property  deliv- 
ered to  a  solvent  receiptor,  in  whose  hands  it  was  accidentally  burned.  And  see 
Gilmore  v.  Moore,  30  Ga.  628. 

32  Winborne  v.  Mitchell,  111  N.  C.  13,  15  S.  E.  882.  So  as  to  jailer.  Saun- 
ders  v.  Perkins,  140  Pa.  St.  102,  21  Atl.  257. 

§  163.     i  LOUISIANA  and  FLORIDA. 
BAR.XEG.— 25 


386  NEGLIGENCE    OF    ATTORNEYS,   PHYSICIANS,   ETC.  (Ch.   9 

the  acknowledgment  was  known  to  him,2  and,  if  the  grantee  should 
suffer  damage  in  consequence  of  such  negligence,  the  notary  would 
be  liable.3  A  fortiori  would  he  be  liable  for  knowingly  making  a 
false  certificate.4  He  is  bound  to  know  the  truth  of  matters  con- 
tained in  his  certificate,,  and  will  not  be  heard  to  excuse  a  mistake 
as  to  the  identity  of  parties,5  certainly  not  where  there  is  a  clear  dere- 
liction of  duty."  He  has  even  been  held  liable  to  a  legatee  for  negli- 
gence in  drawing  a  will.7 

Protesting  Notes  and  Bills. 

In  the  performance  of  the  duties  attached  to  the  protesting  of 
negotiable  instruments,  the  notary  is  not  held  to  so  high  a  degree 
of  care  and  skill  as  in  taking  the  acknowledgment  of  deeds,  for 
the  reason  that  these  duties  require  the  exercise  of  judgment  and 
discretion,  which  are  not  required  in  taking  acknowledgments.  He 
is,  however,  bound  to  use  ordinary  diligence  and  care,8  and  if,  by 
reason  of  his  failure  to  use  such  ordinary  care,  the  owner  of  the 
bill  is  damaged,  the  notary  will  be  liable.  It  is  the  duty  of  the 
notary  to  personally  make  demand  for  the  payment,  and  the  duty 
cannot  be  delegated,9  although,  in  view  of  a  well-established  cus- 
tom to  make  such  presentments  by  deputy,  such  delegation  of  au- 
thority has  been  sustained.10  The  notary  is  bound  to  know  the 
residence  of  the  holder  of  the  obligation,  to  whom  he  should  apply 

2  Fogarty  v.  Finlay,  10  Cal.  239: 
s  Id. 

*  Hatton  v.  Holmes,  97  Cal.  208,  31  Pac.  1131;  People  v.  Butler,  74  Mich. 
643,  42  N.  W.  273;  Heidt  v.  Minor,  113  Cal.  385,  45  Pac.  700;  People  v.  Colby, 
39  Mich.  456;  State  v.  Plass,  58  Mo.  App.  148.  Cf.  Com.  v.  Haines,  97  Pa.  St. 
228.  Where  notary  acts  as  agent,  in  individual  capacity,  the  principal  cannot 
recover  on  the  notarial  bond.  State  v.  Boughton,  58  Mo.  App.  155. 

s  State  v.  Meyer,  2  Mo.  App.  413. 

«  Com.  v.  Haines,  97  Pa.  St.  228;  Henderson  v.  Smith,  26  W.  Va.  829;  Scot- 
ten  v.  Fegan,  62  Iowa,  236,  17  N.  W.  491;  Brigham  v.  Bussey,  26  La.  Ann. 
676;  Fox  v.  Thibault,  33  La.  Ann.  33;  Schmitt  v.  Drouet,  42  La.  Ann.  1004, 
8  South.  396. 

T  Weintz  v.  Kramer,  44  La.  Ann.  35,  10  South.  416.  Cf.  Schmitt  v.  Drouet,  42 
La.  Ann.  1064,  8  South.  396. 

a  Shear.  &  R.  Neg.  (4th  Ed.)  §  597. 

»  Chenowith  v.  Chamberlin,  6  B.  Mon.  (Ky.)  60;  Commercial  Bank  v.  Barks- 
dale,  36  Mo.  563;  Onondaga  County  Bank  v.  Bates,  3  Hill  (N.  Y.)  53. 

10  Commercial  Bank  v.  Varnum,  49  N.  Y.  2G9. 


§    164)  CLERKS    OF    COURT    AND   REGISTERS    OF    DEEDS.  387 

for  information  essential  to  a  legal  protest  and  notice;11  but  he  is 
not  obligated  to  know  where  the  parties  or  intermediate  indorsers 
•can  be  found.12  It  has  been  held  that  if  the  notary,  acting  on  in- 
formation furnished  by  the  last  indorser,  misdirects  a  notice,  he  is 
not  responsible; 13  otherwise,  if  he  acts  on  information  furnished 
by  a  stranger.14 

Failure  to  make  demand  and  protest  at  the  proper  time — to  make 
it  either  before  1S  or  after  16  maturity  of  the  bill — is  certainly  neg- 
ligence for  which  he  will  be  liable. 

Proximate  Cause  of  Loss. 

To  sustain  an  action  against  the  notary  for  negligence,  it  must 
appear  that  the  loss  was  the  direct  result  of  his  omission  of  duty.17 
And  if  the  holder  of  the  bill  has,  by  his  own  negligence,  in  any 
way  contributed  to  cause  the  loss,  or  render  it  possible,  he  cannot 
recover  from  the  notary.18 

SAME— CLERKS  OF  COURT  AND  REGISTERS  OF  DEEDS. 

164.  Clerks  of  court,  as  well  as  town  and  county  clerks, 
being  ministerial  officers,  are  bound  to  know  the 
law  applicable  to  their  duties,  and  for  any  viola- 
tion, omission,  or  negligent  performance  thereof  are 
liable  in  damages  to  the  party  injured. 

Such  liability  is  independent  of  statutes,  which  in  many  states 
•expressly  provide  for  any  dereliction  in  duty.  Thus,  if  the  clerk, 
on  being  informed  that  the  right  of  recovery  would  shortly  be  barred 
l»y  the  statute  of  limitations,  should  neglect  or  refuse  to  issue  a 

11  Vandewater  v.  Williamson,  13  Phila.  (Pa.)  140. 

12  Mulholland  v.  Samuels,  8  Bush  (Ky.)  63;    Vandewater  v.  Williamson,  13 
Phila.  (Pa.)  140. 

is  Bellemire  v.  Bank,  4  Whart.  (Pa.)  105. 

i*  Citizens'  Bank  v.  Howell,  8  Md.  530. 

IB  Stacy  v.  Bank,  12  Wis.  629;  American  Exp.  Co.  v.  Haire,  21  Ind.  4. 

is  Warren  Bank  v.  Suffolk  Bank,  10  Gush.  (Mass.)  582;  Fabens  v.  Bank,  23 
Pick.  (Mass.)  330. 

IT  Mechanics'  Bank  v.  Merchants'  Bank,  6  Mete.  (Mass.)  13. 

is  Swinyard  v.  Bowes,  5  Maule  &  S.  62;  Franklin  v.  Smith,  21  Wend.  (N. 
Y.)  624;  Eeed  v.  Darlington,  19  Iowa,  349. 


388  NEGLIGENCE    OF   ATTORNEYS,   PHYSICIANS,  ETC.  (Ch.   9 

citation,  he  would  be  liable  to  the  creditor  for  the  amount  of  the 
debt  thereby  lost.1  When  it  is  by  law  made  the  duty  of  a  clerk 
of  court,  upon  the  filing  of  a  praecipe  by  the  moving  party  in  an  ac- 
tion, to  issue  process  to  the  sheriff,  whose  duty  it  is  to  serve  the 
same,  and  return  it  to  the  clerk,  who  must  then  receive  and  record 
the  return,  the  clerk  cannot  defend  an  action  for  negligence  in 
these  duties  by  showing  that  the  plaintiff  failed  to  see  to  it  that 
the  duties  had  been  properly  performed.2  And  when  it  is  his  duty 
to  pass  on  the  sureties  on  a  bond,  and  damage  results  from  ac- 
cepting those  who  are  worthless  or  insufficient,  he  will  be  liable.* 
Mistakes  of  the  clerk  in  making  a  certificate  as  to  judgments  en- 
tered in  his  office  render  him  liable  for  any  damage  caused  thereby.* 
And  it  is  immaterial  whether  the  search  was  made  by  himself  or  his- 
deputy,  or  even  by  a  volunteer.5  He  is  also  liable  for  negligently 
filing  papers,8  and  for  their  loss  or  destruction;7  and  when  he  has 
failed  to  issue  an  execution  when  ordered  by  the  plaintiff's  attorney  r 
an  averment  that  the  papers  are  lost,  and  that  the  costs,  for  that 
reason,  could  not  be  taxed,  and  the  execution  issued,  is  not  a  suffi- 
cient defense.8 

In  the  same  manner  a  register  of  deeds  is  liable  for  negligence 
or  omission  in  the  record  of  instruments,  or  in  the  performance  of 
other  duties  incident  to  his  office.9  Where  the  clerk  of  court,  ex 
officio  the  parish  recorder,  failed  to  properly  record  an  act  of  sale, 

§  164.     i  Anderson  v.  Johett,  14  La.  Ann.  614. 

a  Baltimore  &  O.  R.  Co.  v.  Weedon,  24  C.  C.  A.  249,  78  Fed.  584. 

s  McNutt  v.  Livingston,  7  Smedes  &  M.  (Miss.)  641.  And  generally,  see 
Brown  v.  Lester,  13  Smedes  &  M.  (Miss.)  392;  Governor  v.  Wiley,  14  Ala.  172; 
Governor  v.  Dodd,  81  111.  163;  Johnson  v.  Schlosser,  146  Ind.  509,  45  N.  E, 
702,  36  Lawy.  Rep.  Ann.  59;  Logan  v.  McCahan,  102  Iowa,  241,  71  N.  W, 
252. 

*  Maxwell  v.  Pike,  2  Me.  8;  Ziegler  v.  Com.,  12  Pa.  St.  227;  Chase  v.  Heaney, 
70  111.  268.    To  make  the  clerk  responsible,  it  is  not  necessary  that  a  fee- 
should  be  paid  for  the  search.     Harrison  v.  Brega,  20  U.  C.  Q.  B.  324. 

e  Morange  v.  Mix,  44  N.  Y.  315. 

•  Rosenthal  v.  Davenport,  38  Minn.  543,  38  N.  W.  618. 
i  Toncray  v.  Dodge  Co.,  33  Neb.  802,  51  N.  W.  235. 

s  Benjamin  v.  Shea,  83  Iowa,  392,  49  N.  W.  989.  And  see  People  v.  Bartels,. 
138  111.  322,  27  N.  E.  1091. 

»  Welles  v.  Hutchinson,  2  Root  (Conn.)  85;  Johnson  v.  Brice  (Wis.)  78  N. 
W.  1086. 


§    164)  CLERKS    OF    COURT    AND    REGISTERS    OF    DEEDS.  389 

reserving  a  vendor's  lien  for  the  unpaid  portion  of  the  purchase 
money,  and  which  had  been  placed  in  his  hands  for  that  purpose, 
he  was  held  liable  for  the  consequent  loss.10 

10  Baker  v.  Lee,  49  La.  Ann.  874,  21  South.  588.    See,  also,  Welles  v.  Hutch- 
inson,  2  Root  (Conn.)  85. 


390  DEATH    BY    WRONGFUL    ACT.  (Ch.   10 

CHAPTER  X. 

DEATH  BY  WRONGFUL  ACT. 

165-166.  Right  of  Action. 

167.  Instantaneous  Death. 

168.  Proximate  Cause  of  Death. 

169.  Beneficiaries. 

170.  Damages. 

171.  Pleading. 

172.  Evidence. 

173.  Limitation  of  Commencement  of  Action. 

BIGHT  OF  ACTION. 

165.  At  common  law  no  right  of  action  accrues  to  the  per- 

sonal representatives  of  the  deceased  to  recover 
damages  suffered  by  reason  of  his  -wrongful  death. 

166.  Under  Lord  Campbell's  act,  and  in  the  states  which 

have  modeled  their  statutes  thereon,  whenever 
death  is  caused  by  wrongful  act,  neglect,  or  default 
such  as  would,  if  death  had  not  ensued,  have  en- 
titled the  party  injured  to  sustain  an  action,  an  ac- 
tion may  be  maintained  to  recover 

(a)  Such  damages,  consequent  on  the  death,  as  directly 

result  to  the  beneficiaries; 

(b)  Such  action  to  be  for  the  exclusive  benefit  of  certain 

designated  members  of  the  family  of  the  deceased. 

The  maxim,  "Actio  personalis  moritur  cum  persona,"  applies, 
under  the  common  law,  to  any  right  of  action  for  an  injury  result- 
ing in  death,  irrespective  of  the  length  of  time  which  may  inter- 
vene between  the  injury  and  death.  Nor  does  any  right  of  action 
survive  to  the  master,  parent,  or  husband  for  the  recovery  of  dam- 
ages for  loss  of  services  or  society.  The  earliest  case  is  that  of 
Higgins  v.  Butcher,1  in  1606.  In  that  case  the  declaration  stated 
that  the  defendant  assaulted  and  beat  the  plaintiff's  wife,  of  which 

§§  1G5-1GG.     i  Yel.  89. 


§§    165-166)  RIGHT   OF    ACTION.  391 

she  died,  to  his  damage.  To  this  it  was  objected  that  "the  declara- 
tion was  not  good,  because  it  was  brought  by  the  plaintiff  for  beat- 
ing his  wife;  and  that,  being  a  personal  tort  to  the  wife,  is  now 
dead  with  the  wife.  *  *  *  And  by  Tanfield.  J.,  if  a  man  beats 
the  servant  of  J.  S.  so  that  he  dies  of  the  battery,  the  master  shall 
not  have  an  action  against  the  other  for  the  battery  and  loss  of 
service,  because,  the  servant  dying  of  the  extremity  of  the  battery, 
it  is  now  become  an  offense  to  the  crown,  being  converted  into  a 
felony,  and  that  drowns  the  particular  offense  and  private  wrong 
offered  to  the  master,  and  his  action  is  thereby  lost."  It  does  not 
appear  that  the  question  was  again  before  the  courts  of  England 
for  about  200  years,  when  the  leading  case  of  Baker  v.  Bolton  2 
was  tried  before  Lord  Ellenborough,  and  in  which  the  great  jurist 
instructed  the  jury  that  "in  a  civil  court  the  death  of  a  human  be- 
ing could  not  be  complained  of  as  an  injury." 

Lord  Campbell's  act,3  entitled  "An  act  for  compensating  the  fam- 
ilies of  persons  killed  by  accidents,"  was  passed  in  1846,  and  has 
stood  as  a  model  for  similar  acts  in  most  of  the  states  of  this 
country.  The  act  provides  that:  "^Whensoever  the  death  of  a  per- 
son shall  be  caused  by  wrongful  act,  neglect  or  default,  and  the 
act,  neglect  or  default  is  such  as  would,  if  death  had  not  ensued, 
have  entitled  the  party  injured  to  maintain  an  action  and  recover 
damages  in  respect  thereof,  then,  and  in  every  such  case,  the  per- 
son who  would  have  been  liable  if  death  had  not  ensued,  shall  be 
liable  to  an  action  for  damages,  notwithstanding  the  death  of  the 
person  injured,  and  although  the  death  shall  have  been  caused  un- 
der such  circumstances  as  amounted  in  law  to  a  felony." 

It  will  be  seen  that  this  act  creates  a  new  cause  of  action,  for, 
although  the  action  can  be  maintained  only  when  the  death  is 
caused  under  such  circumstances  as  would  have  entitled  the  party 
injured  to  maintain  an  action  had  he  survived,  it  cannot  be  main- 

2  1  Camp.  493.  The  earlier  cases  in  the  United  States  in  which  this  ques- 
tion was  considered  are:  Cross  v.  Guthery.  2  Root  (Conn.)  90,  overruled  in 
Connecticut  Mut.  Life  Ins.  Co.  v.  New  York  &  N.  H.  K.  Co.,  25  Conn.  265; 
Ford  v.  Monroe,  20  Wend.  (X.  Y.)  210.  overruled  in  Green  v.  Railroad  Co.,  *41 
N.  Y.  294;  Carey  v.  Railroad  Co..  1  Cush.  (Mass.)  475;  Skinner  v.  Railroad 
Corp.,  1  Cush.  (Mass.)  475;  Eden  v.  Railroad  Co.,  14  B,  Mon.  (Ky.)  204;  James 
v.  Christy,  18  Mo.  162;  Shields  v.  Yoiige,  15  Ga.  349. 

a  9  &  10  Viet.  c.  93,  §  1. 


DEATH    BY    WRONGFUL    ACT.  (Ch.    10 

tained  to  recover  damages  resulting  from  the  personal  injury  to 
him,  but  lies  only  for  the  recovery  of  damages  for  the  pecuniary 
loss  resulting  to  his  family  from  his  death.4  A  large  majority  of 
the  states  have  enacted  laws  embodying  the  substantial  elements 
of  Lord  Campbell's  act.5  In  these  statutes  the  language,  in  some 
instances,  varies  materially,  but  the  substance  of  the  parent  act 
is  very  generally  preserved.  The  statutes  of  Connecticut,6  Iowa,7 
New  Hampshire,8  and  Tennessee 9  possess  the  distinguishing  pe- 
culiarity of  providing  for  a  survival  of  the  injured  party's  right  of 
action,  instead  of  creating  a  new  and  independent  right.  A  pecul- 
iarity of  the  Maine  10  and  Massachusetts  1X  statutes  is  the  grant- 
ing of  a  remedy  by  way  of  indictment.  Many  of  the  statutes  in 
force  in  the  United  States  contain  other  peculiar  provisions  lying 
outside  the  province  of  the  present  discussion,  which  is  intended 
to  cover  only  the  general  principles  of  the  act  which  are  substan- 
tially common  to  the  statutes  of  a  large  majority  of  the  states. 

The  constitutionality  of  the  various  acts  providing  a  remedy  for 
wrongful  death  has  been  repeatedly  upheld,12  and  rarely  questioned. 

*  In  Blake  v.  Railway  Co.,  18  Q.  B.  93,  21  Law  J.  Q.  B.  233,  Coleridge,  J., 
said:  "This  act  does  not  transfer  the  right  of  action  to  his  representatives, 
but  gives  to  his  representatives  a  totally  new  right  of  action,  on  different  prin- 
ciples." 

6  Tiff.  Death  Wrongf.  Act,  §  24.  IOWA,  OREGON,  and  WASHINGTON, 
under  the  construction  of  the  courts,  give  a  recovery  for  the  benefit  of  the 
•estate,  not  the  family,  of  the  deceased,  while  NORTH  CAROLINA,  VIRGINIA, 
and  WEST  VIRGINIA  hold  the  action  to  be  maintainable  notwithstanding 
that  there  are  none  of  the  relatives  in  existence  for  whose  benefit  the  action  is 
primarily  given. 

«  Gen.  St.  1888,  §§  1008,  1009,  1383. 

t  McClain's  Ann.  Code,  §§  3730-3732,  3734. 

«  Pub.  St.  1891,  c.  191,  §§  8-13. 

«  Mill.  &  V.  Code,  §§  3130-3134. 

10  Rev.  St.  1883,  c.  51,  §§  08,  69;   Id.  c.  52,  §  7. 

11  Pub.  St.  c.  112,  §  212. 

12  Boston,  C.  &  M.  R.  Co.  v.  State,  32  N.  H.  215;    Southwestern  R.  Co.  v. 
Paulk,  24  Ga.  356;    Board  Internal  Improvement  of  Shelby  Co.  v.  Scearce,  2 
Duv.  (Ky.)  576;    Louisville  Safety- Vault  &  Trust  Co.  v.  Louisville  &  N.  R. 
Co.  (Ky.)  17  S.  W.  567;  Carroll  v.  Railway  Co.,  88  Mo.  239. 


?§    165-166)  RIGHT    OF    ACTION.  •  393 

The  Wrongful  Act. 

The  various  American  statutes,  which  were  all  modeled  on  Lord 
Campbell's  act,  in  their  qualification  of  the  conduct  resulting  in 
death,  although  differing  widely  in  phraseology,  with  very  few  ex- 
ceptions make  use  of  the  words  "wrongful"  and  "negligence''  or 
-"neglect."  In  the  construction  of  these  statutes,  "wrongful  act" 
is  universally  given  its  ordinary,  accepted  meaning,  and  although 
it  includes,  is  not  restricted  to,  malicious,  willful,  or  intentional 
acts.13  It  is,  however,  essential  to  the  right  of  action  that  the 
wrongful  act  should  be  of  such  a  nature  as  would  have  given  the 
injured  party  the  right  of  recovery,14  and  it  is  believed  that  this 
•essential  element  of  the  right  of  action  exists  even  in  those  states 
where  the  express  condition  is  not  embodied  in  the  statute.15  If 
death  is  the  result  of  an  intentional  act, — that  is,  if  the  killing  is 
intentional, — the  determination  of  the  foregoing  element  will  de- 
pend upon  the  excuse  or  justification  which  the  defendant  may  be 
able  to  prove.16  If  the  death  is  the  alleged  result  of  negligence, 
the  question  then  becomes  one  of  nonperformance  of  duty,  to  be 
determined  by  the  law  applicable  to  the  particular  division  of  the 
subject  of  negligence  in  which  it  falls. 

Contributory  Negligence. 

It  follows,  as  of  course,  that  in  such  cases  the  defense  of  con- 
tributory negligence  is  always  open; 1T   and  this  is  true  even  under 
statutes  which  do  not  expressly  provide  that  the  action  is  main- 
is  Baker  v.  Bailey,  16  Barb.  (N.  Y.)  54;    McLean  v.  Burbank,  12  Minn.  530 
<Gil.  438).     And  see  Wells  v.  Sibley,  56  Hun,  644,  9  X.  Y.  Supp.  343. 

i*  Xeilson  v.  Brown,  13  R.  I.  651;  Martin  v.  Wallace,  40  Ga.  52;  Wallace  v. 
€annon,  38  Ga.  199. 

is  Tin0.  Death  Wrongf.  Act,  §  63. 

is  White  v.  Maxcy,  64  Mo.  552;  Morgan  v.  Durfee,  69  Mo.  469;  Fraser  v. 
Freeman.  56  Barb.  (X.  Y.)  234.  The  burden  is  not  on  plaintiff  of  proving  his 
<?ase  beyond  a  reasonable  doubt  when  self-defense  is  pleaded,  March  v.  Walker. 
48  Tex.  372;  and  the  plea  of  self-defense  does  not  cause  the  burden  to  shift, 
Nichols  v.  Winfrey,  79  Mo.  544.  Per  contra,  Brooks  v.  Haslam,  65  Cal.  421, 
4  Pac.  399. 

IT  Even  where  the  action  is  by  the  parent  for  the  death  of  a  minor  child 
employed  without  the  parent's  consent.  Texas  &  P.  Ry.  Co.  v.  Carlton.  60 
Tex.  397;  Texas  &  X.  O.  Ry.  Co.  v.  Crowder,  61  Tex.  262,  63  Tex.  502.  70  Tex. 
222.  7  S.  W.  709.  Per  contra,  under  employer's  liability  act.  Code  Ala.  1886, 
3§  2590,  2501;  Williams  v.  Railroad  Co.,  91  Ala.  635,  9  South.  77. 


394  DEATH    BY    WRONGFUL    ACT.  (Ch.    10 

tainable  only  when  the  injured  person  might  have  maintained  an 
action,18  and,  a  fortiori,  where  the  statute  provides  for  a  survival 
of  the  original  cause  of  action.19  And  where  the  doctrine  of  com- 
parative negligence  prevails,  the  modification  of  the  rule  of  con- 
tributory negligence  applies  equally  under  the  statutory  action.20 
If,  however,  the  action  is  for  death  by  "willful  neglect"  under  the 
statute,  the  defense  of  contributory  negligence  will  not  lie.21 

Imputed  Negligence. 

The  doctrine  of  imputed  negligence  has  already  been  discussed.22 
In  those  states  where  this  doctrine,  as  established  in  Hartneld  v, 
Roper,23  is  still  adhered  to  in  actions  brought  in  behalf  of  injured 
infants,  it  is  equally  available  as  a  defense  in  all  actions  to  recover 
for  the  infant's  death.24  But  the  important  distinction  noticed  in 
the  consideration  of  this  subject25  between  actions  brought  for  the 
benefit  of  the  child  and  those  brought  for  the  benefit  of  the  parent 

is  Gay  v.  Winter,  34  Cal.  153;  Noyes  v.  Railroad  Co.  (Cal.)  24  Pac.  927; 
Bertelson  v.  Railway  Co..  5  Dak.  313,  40  N.  W.  531;  Rowland  v.  Cannon,  35 
Ga.  105;  Southwestern  R.  Co.  v.  Johnson,  60  Ga.  667;  Berry  v.  Railroad  Co..  72 
Ga.  137;  Central  R.  Co.  v.  Thompson,  76  Ga.  770;  Central  R.  &  B.  Co.  v. 
Kitchens,  83  Ga.  83,  9  S.  E.  827;  Pennsylvania  R.  Co.  v.  Zebe,  33  Pa.  St.  318;. 
Pennsylvania  R.  Co.  v.  Lewis,  79  Pa.  St.  33;  Pennsylvania  R.  Co.  v.  Bell,  122 
Pa.  St.  58,  15  Atl.  561;  Helfrich  v.  Railway  Co.,  7  Utah,  186,  26  Pac.  295. 

i»  Quinn  v.  Railroad  Co.,  56  Conn.  44,  12  Atl.  97;  Lane  v.  Railroad  Co.,  69 
Iowa,  443,  29  N.  W.  419;  Newman  v.  Railway  Co.,  80  Iowa,  672,  45  N.  W. 
1054;  Beck  v.  Manufacturing  Co.,  82  Iowa,  286,  48  N.  W.  81;  Knight  v. 
Railroad  Co.,  23  La.  Ann.  462;  Murray  v.  Railroad  Co.,  31  La.  Ann.  490; 
Weeks  v.  Railroad  Co.,  32  La.  Ann.  615;  Nashville  &  C.  R.  Co.  v.  Smith,  6 
Heisk.  (Tenn.)  174;  Canning  v.  Railway  Co.  (Sup.)  50  N.  Y.  Supp.  506. 

20  Chicago,  B.  &  Q.  R.  Co.  v.  Triplett,  38  111.  482;   Toledo,  W.  &  W.  Ry.  Co. 
v.  O'Connor,  77  111.  391;   Chicago  &  A.  R.  Co.  v.  Fietsam,  123  111.  518,  15  N.  E. 
169;   Florida  C.  &  P.  R.  Co.  v.  Foxworth  (Fla.)  25  South.  338. 

21  Louisville.  C.  &  L.  R.  Co.  v.  Mahony's  Adm'x,  7  Bush  (Ky.)  235;    Clax- 
ton's  Adm'r  v.  Railroad  Co.,  13  Bush  (Ky.)  636;    Louisville  &  N.  R.  Co.   v. 
Brice,  84  Ky.  298,  1  S.  W.  483;    Union  Warehouse  Co.   v.  Prewitt's  Adin'r 
(Ky.)  50  S.  W.  964;  Louisville  &  N.  R.  Co.  v.  Orr  (Ala.)  26  South.  35. 

22  See  ante,  pp.  61-74. 

23  21  Wend.  (N.  Y.)  615,  34  Am.  Dec.  273. 

24  Philadelphia  &  R.  R.  Co.  v.  Boyer,  97  Pa.  St.  91;    Payne  v.  Railroad  Co.r 
39  Iowa,  523;   Stafford  v.  City  of  Oskaloosa,  57  Iowa,  749,  11  N.  W.  668;   Ala- 
bama G.  S.  R.  Co.  v.  Burgess,  116  Ala.  509,  22  South.  913. 

20  See  ante,  pp.  61-74. 


§§    165-166)  EIGHT    OF    ACTION.  395 

should  be  carefully  observed  in  considering  the  question  of  con- 
tributory negligence  of  the  parent  or  guardian  as  a  defense  in  ac- 
tions to  recover  for  the  death  of  the  infant.  As  has  been  already 
stated,26  in  an  action  by  the  parent  in  his  own  behalf  for  injuries 
to  his  minor  child,  the  contributory  negligence  of  the  parent  is  a 
good  defense.  At  the  present  time  this  consideration  is  of  the 
more  importance  for  the  reason  that  in  a  very  large  majority  of 
cases  brought  to  recover  for  the  death  of  infants  the  parents  are 
the  only  persons  entitled,  under  the  statute,  to  the  benefit  of  the 
action.  In  such  cases  no  valid  reason  can  be  assigned  why  the 
contributory  negligence  of  the  parents  should  not  operate  as  a  bar 
to  the  action,  even  if  the  administrator  is  the  nominal  plaintiff,  and 
such  is  undoubtedly  the  generally  accepted  rule.27  In  a  Maryland- 
case  28  the  court  observed  in  its  decision  that  to  allow  recovery  in 
cases  where  the  party  entitled  to  the  action  was  guilty  of  con- 
tributory negligence  would  be  to  allow  parties  to  take  advantage 
of  their  own  wrongful  or  negligent  conduct.  In  an  Iowa  case,2* 
however,  where  the  action  was  brought  by  the  administrator  for 
the  death  of  a  child,  in  which  the  contributory  negligence  of  the 
parents  was  set  up  in  defense,  it  was  held  that  their  negligence 
would  not  defeat  the  action,  the  court  saying:  "*  *  *  It  is- 

26  See  ante.  pp.  61-73. 

27  Baltimore  &  O.  R.  Co.  v.  State,  30  Md.  47;  Hurst  v.  Railway  Co.,  84  Mich. 
539,  48  N.  W.  44;    Pennsylvania  R.  Co.  v.  James,  *81  Pa.  St.  194.     In  the 
latter  case  the  court  says:   "A  distinction  is  taken  between  the  case  of  a  father 
or  mother  bringing  an  action  for  the  death  of  a  child  and  a  child  bringing  an 
action  for  a  personal  injury.     In  the  former  case  the  contributory  negligence 
of  the  parent  may  be  used  in  defense,  while  in  the  latter  case  the  negligence  of 
an  infant  of  tender  years  will  not  be  available."     Pittsburg,  A.  &  M.  Ry.  Co.  v, 
Pearson,  72  Pa.  St.  169;    Philadelphia  &  R.  R.  Co.  v.  Long,  75  Pa.  St.  257; 
Pennsylvania  R.  Co.  v.  Lewis,  79  Pa.  St.  33;   Westerberg  v.  Railroad  Co.,  142 
Pa.  St.  471,  21  Atl.  878;   Williams  v.  Railway  Co.,  60  Tex.  205,  distinguishing: 
Galveston,  H.  &  H.  Ry.  Co.  v.  Moore,  59  Tex.  64,  in  which  case  Hartfleld  v, 
Roper  is  distinctly  repudiated.     Same  effect,  Cook  v.  Navigation  Co.,  76  Tex. 
353,  13  S.  W.  475;    Reilly  v.  Railroad  Co.,  94  Mo.  600,  7  S.  W.  407:    Koons  v. 
Railroad  Co.,  65  Mo.  592;    St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Freeman,  36  Ark.  41; 
Westerfield  v.  Levis,  43  La.  Ann.  63,  9  South.  52. 

28  Baltimore  &  O.  R.  Co.  v.  State,  30  Md.  47.    And  see  Hurst  v.  Railway  Co., 
84  Mich.  539,  48  N.  W.  44. 

29  Wymore  v.  Mahaska  Co.,  78  Iowa,  396,  43  N.  W.  264.    And  see  Walters- 
v.  Railroad  Co.,  41  Iowa,  71. 


306  DEATH    BY   WRONGFUL    ACT.  (Ch.   10 

c-laimed  that,  *  *  *  since  they  inherited  his  estate,  the  rule 
which  would  bar  a  negligent  parent  from  recovering  in  such  a  case 
in  his  own  right  ought  to  apply.  But  plaintiff  seeks  to  recover  in 
the  right  of  the  child,  and  not  for  the  parents.  It  may  be  that  a 
recovery  in  this  case  will  result  in  conferring  an  undeserved  benefit 
upon  the  father,  but  that  is  a  matter  which  we  cannot  investigate. 
If  the  facts  are  such  that  the  child  could  have  recovered  had  his 
injuries  not  been  fatal,  his  administrator  can  recover  the  full  amount 
of  damages  which  the  estate  of  the  child  has  sustained."  The  same 
rule  has  been  adopted  in  Virginia  where  the  action  was  brought 
by  the  father  as  administrator  of  the  infant.30  But  where  there 
are  persons  entitled  to  the  benefit  of  the  action  other  than  those 
whose  negligence  has  contributed  to  the  injury,  such  negligence 
is  not  a  defense  to  the  action.31  In  one  of  the  Ohio  cases  cited  32 
the  court  seems  to  have  decided  against  the  validity  of  the  defense 
of  contributory  negligence  of  a  beneficiary  under  the  action,  on 
the  double  ground  that  the  suit  was  brought  by  the  husband  as 
administrator,  and  was  prosecuted  for  the  benefit  of  the  children 
as  well  as  the  husband  of  the  deceased.  On  commenting  on  the 
decisions  in  the  last-named  states,  Mr.  Tiffany  says:  "So  far  as 
the  Ohio  decisions  rest  on  the  ground  that  the  contributory  negli- 
gence of  one  of  the  beneficiaries  of  the  action  cannot  be  permitted 
to  defeat  it  where  the  other  beneficiaries  are  free  from  negligence, 
their  reasoning  is  unassailable.  So  far,  however,  as  they  rest  on 
the  ground  that  the  right  of  the  administrator  to  maintain  the 
action  depends  upon  exactly  the  same  conditions  that  would  have 
determined  the  right  of  the  party  injured,  the  Ohio  cases,  in  com- 
mon with  those  in  Iowa  and  Virginia,  are  open  to  the  criticism  that 
they  make  the  right  of  the  party  injured  to  maintain  an  action  the 

so  Norfolk  &  W.  R.  Co.  v.  Groseclose's  Adm'r,  88  Va.  267,  13  S.  E.  454  (per 
curiam):  "Hence,  when  the  facts  are  such  that  the  child  could  have  recovered, 
had  his  injuries  not  been  fatal,  his  administrator  may  recover,  without  regard 
to  the  negligence  or  presence  of  the  parents  at  the  time  the  injuries  are  re- 
ceived, and  although  the  estate  is  inherited  by  the  parents." 

si  Cleveland,  C.  &  C.  R.  Co.  v.  Crawford,  24  Ohio  St.  631;  Davis  v.  Guar- 
nieri,  45  Ohio  St.  470,  15  N.  E.  350;  Consolidated  Traction  Co.  v.  Hone.  59 
N.  J.  Law,  275,  35  Atl.  899;  Wolf  v.  Railroad  Co.,  55  Ohio  St  517,  45  N.  E. 
708. 

sz  Davis  v.  Guarnieri,  45  Ohio  St.  470,  15  N.  E.  350. 


§    167)  INSTANTANEOUS    DEATH.  397 

sole  test  of  the  right  of  the  beneficiaries  to  recover  damages  for 
his  death,  instead  of  treating  it  merely  as  one  of  the  conditions  of 
their  right."  33 

SAME— INSTANTANEOUS   DEATH. 

167.  The  period  -within  -which  death  results  from  the  in- 
jury does  not  affect  the  right  of  action  under  the 
statute. 

It  is  immaterial  whether  death  is  instantaneous,  or  ensues  after 
an  appreciable  interval.1  The  point  was  settled  in  an  early  New 
York  case  2  in  the  following  terse  language :  "The  provision  settles- 
the  question,  and  leaves  nothing  for  debate  or  doubt.  No  one  would 
question  the  right  of  the  intestate  in  this  case,  if  he  had  survived 
the  injury,  to  maintain  an  action  for  it.  *  *  *  The  statute  givea 
the  action  to  the  personal  representative  of  the  individual  injured 
when  the  injury  causes  his  death,  and  it  makes  no  distinction  be- 
tween cases  where  the  death  was  immediate  or  instantaneous  and 
where  it  was  consequential."  8 

Under  statutes  which  provide  for  a  survival  of  the  common-law 
cause  of  action,  and  which  do  not  provide  for  the  recovery  of  dam- 
ages for  an  injury  resulting  in  death,  it  becomes  very  material 
whether  death  was  or  was  not  instantaneous.  Thus,  under  the 
Massachusetts  statute,  which  provides  "that  the  action  for  tres- 
pass on  the  case,  for  damages  to  the  person,  shall  hereafter  sur- 
vive, so  that,  in  the  event  of  the  death  of  the  person  entitled  to- 
bring  such  action,  or  liable  thereto,  the  same  may  be  prosecuted 
or  defended  by  or  against  the  executor  or  administrator,  in  the 

as  Tiff.  Death  Wrongf.  Act,  §  71. 

§  167.  i  Brown  v.  Railroad  Co.,  22  N.  Y.  191;  International  &  G.  N.  R.  Co, 
v.  Kindred,  57  Tex.  491;  Roach  v.  Mining  Co.,  7  Sawy.  224,  7  Fed.  698;  Reed 
v.  Railroad  Co.,  37  S.  C.  42,  16  S.  E.  289;  Belding  v.  Railroad  Co.,  3  S.  D.  369,. 
53  N.  W.  750. 

2  Brown  v.  Railroad  Co.,  22  N.  Y.  191. 

8  The  remedy  by  indictment  under  the  MAINE  statute  cannot  be  maintained, 
for  death  resulting  from  negligence  of  a  railroad  corporation,  if  death  was  not 
instantaneous.  State  v.  Maine  Cent.  R.  Co.,  60  Me.  490;  State  v.  Grand  Trunk. 
Ry.  Co.,  61  Me.  114.  The  opposite  ruling  is  made  under  the  MASSACHU- 
SETTS statute.  Com.  v.  Metropolitan  R.  Co.,  107  Mass.  236. 


398  DEATH    BY    WRONGFUL    ACT.  (Ch.    10 

same  manner  as  if  he  were  living,"  it  has  been  repeatedly  held  that, 
if  death  was  instantaneous,  no  action  could  be  maintained.*  And 
under  similar  statutes  in  Maine  and  Kentucky  the  courts  have 
held  that  no  right  of  action  survives  when  death  was  instantaneous.5 
In  Connecticut,6  Iowa,7  and  Tennessee,8  although  the  statutes  pro- 
vide for  a  survival  of  the  action,  the  language  of  the  enactments  is 
such  that,  under  the  construction  placed  upon  it  by  the  courts, 
the  action  may  be  maintained  notwithstanding  the  fact  that  death 
was  instantaneous. 


SAME— PROXIMATE  CAUSE  OF  DEATH. 

168.  To  maintain  the  action,  it  must  appear  that  death 
was  the  natural,  proximate  result  of  the  wrongful 
act,  neglect,  or  default  of  the  defendant. 

To  support  this  general  proposition,  no  citations  are  necessary. 
It  is  not  sufficient,  however,  that  death  is  merely  hastened  by  the 
injury.1  But  that  other  causes  acted  in  conjunction  with  the  in- 
jury complained  of  will  not  necessarily  defeat  the  action.2  So,  also, 
SL  recovery  may  be  had  for  death  caused  by  the  concurrent  negli- 

4  Kearney  v.  Railroad  Corp.,  9  Gush.  108;  Moran  v.  Rollings,  125  Mass. 
"93.  On  failure  of  positive  proof  to  the  contrary,  the  presumption  would  seem 
to  be  in  favor  of  instantaneous  death.  Riley  v.  Railroad  Co.,  135  Mass.  292; 
Corcoran  v.  Railroad  Co.,  133  Mass.  507.  Death  by  suffocation  not  instanta- 
neous. Npurse  v.  Packard,  138  Mass.  307;  Pierce  ^.  Steamship  Co.,  153  Mass. 
87,  26  N.  E.  415.  And  see  Bancroft  v.  Railroad  Corp.,  11  Allen,  34. 

6  State  v.  Railroad  Co.,  60  Me.  490;  Hansford's  Adm'x  v.  Payne,  11  Bush 
(Ky.)  380;  Newport  News  &  M.  V.  R.  Co.  v.  Dentzel's  Adni'r,  91  Ky.  42,  14 
S.  W.  958. 

«  Murphy  v.  Railroad  Co.,  30  Conn.  184. 

T  Conuers  v.  Railway  Co.,  71  Iowa,  490,  32  N.  W.  465,  followed  in  Worden 
v.  Railroad  Co.,  72  Iowa,  201,  33  N.  W.  629. 

s  Nashville  &  C.  R.  Co.  v.  Prince,  2  Heisk.  580,  overruling  Louisville  &  N. 
R.  Co.  v.  Burke,  6  Cold.  45,  and  followed  in  Fowlkes  v.  Railroad  Co.,  5  Baxt. 
€63;  Haley  v.  Railroad  Co.,  7  Baxt.  239;  Kansas  City,  Ft  S.  &  M.  R.  Co.  v. 
Daughtry,  88  Tenn.  721,  13  S.  W.  698.  See,  also,  Matz  v.  Railroad  Co.,  85 
Fed.  180;  Perham  v.  Electric  Co.  (Or.)  53  Pac.  14. 

§  168.     i  Jackson  v.  Railway  Co.,  87  Mo.  422. 

a  Louisville  &  N.  R.  Co.  v.  Jones,  83  Ala.  370,  3  South.  902. 


<}    168)  PROXIMATE    CAUSE    OF    DEATH.  399 

gence  of  several  parties.3  In  general,  the  determination  of  the 
cause  of  death  is  analogous  to  the  determination  of  the  proximate 
cause  in  any  action  to  recover  for  the  negligence  of  the  defendant. 
Thus,  if  an  independent  cause  intervene,  sufficient  to  break  the 
causal  connection,  no  recovery  can  be  had  for  the  death,  just  as  no 
recovery  could  be  had  for  the  injury,  had  death  not  resulted,  and 
the  direct  relation  of  cause  and  effect  had  not  been  established 
between  the  alleged  negligent  act  and  the  injury.4  If,  however, 
the  injury  was  in  itself  sufficient  to  cause  death,  it  will  be  received 
as  the  proximate  cause,  unless  it  is  made  to  appear  that  death 
must  have  ensued  independently  of  the  injury.8 

Where  death  results  from  neglect  by  the  defendant  of  a  statutory 
duty,  the  action  can  still  be  maintained,  provided  the  injured  per- 
son could  have  maintained  an  action,  had  he  survived; 6  and  in 
such  case  the  action  can  be  maintained  even  if  the  statute  giving 
redress  for  the  personal  injury  was  enacted  after  the  act  creating 
a  right  of  action  for  wrongful  death.7 

Apart  from  any  right  of  action  conferred  by  the  so-called  "civil 
damage  acts,"  there  are  well-considered  cases  which  hold  that  an 
action  is  maintainable  when  death  results  from  liquor  supplied  by 
defendant  after  decedent  was  in  an  advanced  stage  of  intoxica- 
tion.8 These  cases,  however,  proceed  on  the  theory  that  in  an  ad- 
vanced stage  of  intoxication  the  decedent  was  incapable  of  exer- 
cising volition,  and  hence  could  not  be  guilty  of  contributory  neg- 
ligence. It  is  difficult  to  understand,  however,  why  contributory 
negligence  should  not  be  predicated  on  the  act  of  the  decedent  in 

s  Consolidated  Ice-Mach.  Co.  v.  Keifer,  134  111.  481,  25  N.  E.  799;  Cline  v. 
Railroad  Co.,  43  La.  Ann.  327,  9  South.  122. 

4  Scheffer  v.  Railroad  Co.,  105  U.  S.  249;  Schoen  v.  Railroad  Co.  (Super.  N. 
Y.)  9  N.  Y.  Supp.  709.  And  see  ante,  pp.  9-33. 

o  Beauchamp  v.  Mining  Co.,  50  Mich.  163,  15  N.  W.  65;  Jucker  v.  Railway 
Co.,  52  Wis.  150,  8  N.  W.  862. 

e  Osborne  v.  McMasters,  40  Minn.  103,  41  N.  W.  543;  Nugent  v.  Vander- 
veer,  39  Hun  (N.  Y.)  323;  Becke  v.  Railway  Co.,  102  Mo.  544,  13  S.  W.  1053. 
And  see  Palmer  v.  Railroad  Co.,  112  N.  Y.  234,  19  N.  E.  678;  Rodrian  v.  Rail- 
road Co.,  125  N.  Y.  526,  26  N.  E.  741. 

7  Merkle  v.  Bennington  Tp.,  58  Mich.  156,  24  N.  W.  776.  And  see  Racho  v. 
City  of  Detroit,  90  Mich.  92,  51  N.  W.  360.  Per  contra,  All  v.  Barnwell  Co., 
29  X.  C.  161,  7  S.  E.  58. 

«  Fink  v.  Garman,  40  Pa.  St.  95;   McCue  v.  Klein,  60  Tex.  168. 


400  DEATH    BY    WRONGFUL    ACT.  (Ch.    10 

becoming  intoxicated  in  the  first  instance,  thus  making  the  neg- 
ligent or  wrongful  act  of  the  defendant  possible.  When  the  action, 
is  brought  under  the  "civil  damage  acts,"  the  weight  of  authority 
favors  its  maintenance,9  although  the  contrary  doctrine  is  also- 
maintained.10 

The  Action — By  Whom  Brought. 

It  is  not  within  the  scope  of  the  present  discussion  to  consider 
in  detail  the  provisions  of  the  statutes  conferring  this  right  of  ac- 
tion in  the  various  states,  nor  to  examine  their  peculiarities  in  ref- 
erence to  the  circumstances  in  which  the  action  can  be  main- 
tained.11 

By  the  terms  of  Lord  Campbell's  act  it  is  provided  that  the  ac- 
tion shall  be  brought  by  and  in  the  name  of  the  executor  or  ad- 
ministrator, and  most  of  the  statutes  modeled  thereon  contain  the 
same  provision,  or  its  equivalent,  requiring  the  action  to  be  brought 
by  the  "personal  representatives";  while  a  number  of  the  statutes 
provide  that  the  action  may  be  prosecuted  by  the  parties  for  whose 
benefit  it  is  given.  But,  whatever  may  be  the  particular  provision, 
the  action  is  maintainable  only  by  the  persons  to  that  end  ex- 
pressly authorized  by  the  statute.  If  the  statute  authorizes  the 
action  to  be  brought  by  the  executor  or  administrator,  it  cannot 
be  brought  by  the  beneficiaries;12  and,  conversely,  if  the  persons 
authorized  to  sue  are  the  beneficiaries  of  the  action,  it  cannot  be 

»  Emory  v.  Addis,  71  111.  273;  Hackett  v.  Smelsley,  77  111.  109;  Flynn  v, 
Fogarty,  106  111.  263;  Rafferty  v.  Buckman,  46  Iowa,  195;  Brockway  v.  Patter- 
son, 72  Mich.  122,  40  N.  W.  192;  Roose  v.  Perkins,  9  Neb.  304,  2  N.  W.  715; 
Mead  v.  Stratton,  87  N.  Y.  493;  Davis  v.  Standish,  26  Hun  (N.  Y.)  608;  Mc- 
Carty  v.  Wells,  51  Hun,  171,  4  N.  Y.  Supp.  672. 

10  Barrett  v.  Dolan,  130  Mass.  366;   Harrington  v.  McKillop,  132  Mass.  567; 
Davis  v.  Justice,  31  Ohio  St.  359;    Kirchner  v.  Myers,  35  Ohio  St.  85;    Pegram 
v.  Stortz,  31  W.  Va.  220,  6  S.  E.  485. 

11  For  a  full  discussion  of  this  branch  of  the  subject,  see  Tiff.  Death  Wrongf. 
Act,  c.  3. 

12  Davis  v.  Railway  Co.,  53  Ark.  117,  13  S.  W.  801;   Kramer  v.  Railroad  Co., 
25  Cal.  434;  Covington  St.  R.  Co.  v.  Packer,  9  Bush  (Ky.)  455;   City  of  Chicago 
v.  Major,  18  111.  349;    Hagen  v.  Kean,  3  Dill.  124,  Fed.  Cas.  No.  5,899;    Peru 
&  I.  R.  Co.  v.  Bradshaw,  6  Ind.  146;  Nash  v.  Tousley,  28  Minn.  5,  8  N.  W.  875; 
Scheffler  v.  Railway  Co.,  32  Minn.  125,  19  N.  W.  656;   Wilson  v.  Bumstead,  12 
Neb.  1,  10  N.  W.  411;   Worley  v.  Railroad  Co.,  1  Handy  (Ohio)  481;    Weidner 
v.  Rankin,  26  Ohio  St  522;    Goodwin  v.  Nickersou,  17  R.  I.  478,  23  Atl.  12; 


§    168)  PROXIMATE    CAUSE    OF    DEATH.  401 

maintained  by  the  executor  or  administrator.13  It  follows  as  a  cor- 
ollary that,  where  the  right  to  sue  is  conferred  on  the  personal 
representatives,  the  executor  or  administrator  alone  can  sue.14  And 
where  the  sole  right  to  maintain  the  action  is  conferred  on  the 
personal  representatives,  it  is  immaterial  that  the  deceased  was 
a  married  woman,  and  that,  had  the  action  been  brought  in  her 
lifetime,  the  husband  must  have  been  joined,  for  the  reason  that 
the  condition  of  the  statute  that  the  act  or  neglect  must  be  such 
that  the  party  injured  might  have  maintained  an  action  is  merely 
descriptive  of  the  act  or  neglect,  and  not  of  the  person  by  whom 
the  action  could  be  maintained.15  In  those  states  where  the  juris- 
diction of  the  probate  court  to  appoint  an  administrator  depends 
upon  the  existence  of  assets  of  the  deceased  to  be  administered, 
the  question  arises  whether  a  claim  for  damages  for  his  death  con- 
stitutes such  assets.  As  such  a  claim,  although  enforceable  by  the 
administrator,  does  not  belong  to  the  creditors  of  the  estate,  a 
strict  construction  of  the  statutes  conferring  jurisdiction  on  the 
probate  court  on  this  ground  would  deprive  it  of  jurisdiction.  And 
it  is  so  held  in  Indiana,16  Kansas,17  and  Illinois.18  In  Iowa,19  Min- 
nesota,20 and  Nebraska  21  it  has  been  held  that  the  fact  that  this 
right  of  action  is  given  to  the  personal  representatives  implies  the 
right  to  appoint,  if  necessary,  an  administrator  to  enforce  it. 

Edgar  v.  Castello,  14  S.  C.  20.  Statutory  provision  not  exclusive.  Brown  v. 
Railway  Co.  (Wis.)  77  N.  TV.  748;  Ferguson  v.  Railroad  Co.,  6  App.  D.  C.  525. 

is  Miller  v.  Railroad  Co.,  55  Ga.  143;  Gibbs  v.  City  of  Hannibal,  82  Mo.  143; 
Hennessy  v.  Brewing  Co.,  145  Mo.  104,  46  S.  W.  966. 

i*  Dennick  v.  Railroad  Co.,  103  U.  S.  11;  Ho  well  v.  Commissioners,  121 
N.  C.  362,  28  S.  E.  362;  Fitzhenry  v.  Traction  Co.  (N.  J.  Sup.)  42  Atl.  416. 

is  Green  v.  Railroad  Co.,  31  Barb.  (X.  Y.)  260,  affirming  16  How.  Prac.  (X.  Y.) 
263;  Lynch  v.  Davis,  12  How.  Prac.  (N.  Y.)  323,  overruled;  Whiton  v.  Railroad 
Co.,  21  Wis.  310;  Dimmey  v.  Railway  Co.,  27  W.  Va.  32;  South  &  N.  A.  R. 
Co.  v.  Sullivan,  59  Ala.  272.  See  Long  v.  Morrison,  14  Ind.  595. 

is  Jeffersonville  R.  Co.  v.  Swayne's  Adm'r,  26  Ind.  477. 

17  Perry  v.  Railroad  Co.,  29  Kan.  420. 

is  Illinois  Cent.  R.  Co.  v.  Cragin,  71  111.  177;  Marvin  v.  Transfer  Co.,  49 
Fed.  436. 

i»  Morris  v.  Railroad  Co.,  65  Iowa,  727,  23  N.  W.  143. 

20  Hutchins  v.  Railway  Co.,  44  Minn.  5,  46  N.  W.  79. 

21  Missouri  Pac.  Ry.  Co.  v.  Lewis,  24  Neb.  848,  40  N.  W.  401.     And  see 
Hartford  &  X.  H.  R.  Co.  v.  Andrews,  36  Conn.  213. 

BAR.XEG.— 2G 


402  DEATH    BY    WRONGFUL    ACT.  (Ch.    10 

Whether  the  authority  of  the  administrator  to  bring  the  action 
can  be  questioned  in  such  collateral  proceeding  on  the  ground 
that  by  reason  of  the  nonexistence  of  assets  the  probate  court  has 
no  jurisdiction  to  make  the  appointment,  is  a  matter  which  has 
inot  been  clearly  decided  by  the  courts.22  When  the  statute,  on 
the  nonexistence  of  personal  representatives,  gives  the  right  of  ac- 
tion to  the  "heirs  at  law,"  the  term  includes  all  persons  entitled 
to  share  in  the  proceeds;  and,  if  the  action  is  brought  by  one  of 
the  heirs  at  law,  all  must  be  joined.23  In  general,  under  statutes 
providing  that  the  action  shall  be  brought  by  the  persons  in  inter- 
est, it  depends  upon  the  requirements  of  the  particular  enactment 
whether  it  is  necessary  to  join  all  such  persons.  WThere  the  stat- 
ute creating  this  cause  of  action  does  not  expressly  change  the 
common-law  rule,  the  right  of  action  abates  upon  the  death  of  the 
offending  party.2* 

S  AME— BENEFICI  A.RIES. 

169.  The  action  cannot  be  maintained  unless  it  is  alleged 
and  proved  that  one  or  more  of  the  persons  entitled 
to  the  benefit  of  the  action  survives. 

The  statutes  requiring  the  action  to  be  brought  by  the  executor 
or  administrator  in  almost  every  instance  provide  that  it  shall  bo 
prosecuted  for  the  benefit  of  certain  specified  members  of  the  de- 
ceased's family,  and  that  the  proceeds  shall  be  enjoyed  by  them  to 
the  exclusion  of  creditors  of  the  estate.  As  the  executor  or  ad- 

22  Jeffersonville  R.  Co.  v.  Swayne's  Adm'r,  26  Ind.  477;    Illinois  Cent.  R. 
Co.  v.  Cragin,  71  111.  177;    Missouri  Pac.  Ry.  Co.  v.  Lewis,  24  Neb.  848,  40 
N.  W.  401;    Louisville  &  N.  R.  Co.  v.  Cuaffin,  84  Ga.  519,  11  S.  E.  891.     See 
In  re  Hardy,  35  Minn.  193,  28  N.  W.  219;   Denver,  S.  P.  &  P.  Ry.  Co.  v.  Wood- 
ward, 4  Colo.  1.     In  KANSAS  the  point  has  been  decided  in  the  affirmative. 
Perry  v.  Railroad  Co.,  29  Kan.  420.     But  see,  per  contra,  Holmes  v.  Railway 
Co.,  5  Fed.  523. 

23  st:  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Needham,  3  C.  C.  A.  129,  52  Fed.  371. 

2*  Green  v.  Thompson,  2G  Minn.  500,  5  N.  W.  376;  Hamilton  v.  Jones,  125 
Ind.  176,  25  N.  E.  192;  Davis  v.  Nichols,  54  Ark.  358,  15  S.  W.  880;  Russell 
v.  Sunbury,  37  Ohio  St.  372;  Moe  v.  Smiley,  125  Pa.  St.  136,  17  Atl.  228.  And 
cf.  Pennsylvania  Co.  v.  Davis,  4  Ind.  App.  51,  29  N.  E.  425;  Hegerich  v.  Ked- 
die,  99  N.  Y.  258,  1  N.  E.  787,  overruling  Yertore  v.  Wiswall,  16  How.  Prac. 

<JN.  YO  8. 


§    160)  BENEFICIARIES.  403 

ministrator,  in  his  executive  capacity,  has  no  interest  in  the  recov- 
ery,1 it  follows  that  the  action  cannot  be  maintained  unless  it  is 
alleged  and  proved  that  one  or  more  of  the  persons  entitled  to  the 
benefit  of  the  action  survives.2  The  fact  that  under  a  particular 
statute  the  remedy  is  by  indictment  does  not  affect  the  rule.3  Un- 
der the  peculiar  provisions  of  the  statutes  of  Virginia,4  West  Vir- 
ginia,5 and  Xorth  Carolina,6  where  the  statute  gives  the  benefit  of 
the  action  to  the  widow  and  next  of  kin,  the  provision  is  construed 
in  the  alternative,  and  it  is  sufficient  if  either  survives.7  In  those 

§  109.  i  Leggott  v.  Railway  Co.,  1  Q.  B.  Div.  599,  45  Law  J.  Q.  B.  557,  35 
Law  T.  (X.  S.)  334;  Kramer  v.  Railroad  Co.,  25  Cal.  434;  Lamphear  v.  Buck- 
ingham, 33  Conn.  237;  City  of  Chicago  v.  Major,  18  111.  349;  Jeffersonville, 
M.  &  I.  R.  Co.  v.  Hendricks,  41  Ind.  49;  Stewart  v.  Railroad  Co.,  103  Ind. 
44,  2  X.  E.  208;  Kansas  Pac.  Ry.  Co.  v.  Cutter,  16  Kan.  568;  Perry  v.  Railroad 
•Co.,  29  Kan.  420;  Dickins  v.  Railroad  Co.,  23  N.  Y.  158;  Yertore  v.  Wiswall, 
16  How.  Prac.  (N.  Y.)  28;  Hegerich  v.  Keddie,  99  N.  Y.  258,  1  X.  E.  787;  Brad- 
shaw  v.  Railway  Co.,  L.  R.  10  C.  P.  189,  44  Law  J.  C.  P.  148,  31  Law  T.  (N.  S.) 
S47. 

2  Lamphear  v.  Buckingham,  33  Conn.  237;   Chicago  &  R.  I.  R.  Co.  v.  Morris, 
26  111.  400;    Quincy  Coal  Co.  v.  Hood,  77  111.  68;   Indianapolis,  P.  &  C.  R.  Co. 
v.  Keely's  Adm'r,  23  Ind.  133;    Stewart  v.  Railroad  Co.,  103  Ind.  44,  2  N.  E. 
208;    Clore  v.  Mclntire,  120  Ind.  262,  22  N.  E.  128;    Missouri  Pac.  Ry.  Co.  v. 
Barber.  44  Kan.  612,  24  Pac.  969;    Schwarz  v.  Judd,  28  Minn.  371,  10  N.  W. 
208;    Barnum  v.  Railway  Co.,  30  Minn.  461,  16  X.  W.  364;    Serensen  v.  Rail- 
road Co.,  45  Fed.  407;   Warren  v.  Englehart,  13  Xeb.  283,  13  X.  W.  401;   Dun- 
hene's  Adm'x  v.  Trust  Co.,  1  Disn.  (Ohio)  257;    Lilly  v.  Railroad  Co.,  32  S.  C. 
142,  10  S.  E.  932;    Louisville  &  X.  R.  Co.  v.  Pitt,  91  Tenn.  86,  18  S.  W.  118; 
"Westcott  v.  Railroad  Co.,  61  Vt.  438,  17  Atl.  745;    Geroux's  Adm'r  v.  Graves, 
62  Vt.  280,  19  Atl.  987;    Woodward  v.  Railway  Co.,  23  Wis.  400;    Wiltse  v. 
Town  of  Tilden,  77  Wis.  152,  46  N.  W.  234;    Lucas  v.  Railroad  Co.,  21  Barb. 
(X.  Y.)  245;    Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Young  (Xeb.)  79  X.  W.  553. 

3  Com.  v.  Eastern  R.  Co.,  5  Gray  (Mass.)  473;    Com.  v.  Boston  &  A.  R.  Co., 
121  Mass.  36;   State  v.  Grand  Trunk  Ry.  Co.,  60  Me.  145;   State  v.  Gilmore,  24 
N.  H.  461;   State  v.  Manchester  &  L.  R.  Co.,  52  X.  H.  528.     And  it  is  also  im- 
material that  the  action  is  brought  in  the  name  of  the  state.     State  v.  Balti- 
more &  O.  R.  Co.,  70  Md.  319,  17  Atl.  88. 

*  Baltimore  &  O.  R.  Co.  v.  Wightman's  Adm'r,  29  Grat.  431,  followed  in 
Matthews  v.  Warner's  Adm'r,  29  Grat.  570;   Baltimore  &  O.  R.  Co.  v.  Xoell's 
Adm'r,  32  Grat.  394;   Harper  v.  Railroad  Co.,  36  Fed.  102. 

B  Madden  v.  Railway  Co.,  28  W.  Va.  610. 
«  Warner  v.  Railroad  Co.,  94  X.  C.  250. 

•  City  of  Chicago  v.  Major,  18  111.  349;    Oldfleld  v.  Railroad  Co.,  14  X.  Y. 
510;    Quiii  v.  Moore,  15  X.  Y.  432;    Tilley  v.  Railroad  Co.,  24  X.  Y.  471;    Me- 


404  DEATH    BY    WRONGFUL    ACT.  (Ch.    10 

states  where  the  husband  does  not  inherit  under  the  statute  of  de- 
scent and  distribution,  it  is  held  that  he  cannot  claim  the  benefit  of 
the  action,  as  being  among  "the  next  of  kin."  8  The  action  may  be 
maintained  for  the  benefit  of  a  posthumous  child  of  the  deceased.* 
Where  the  common-law  rule  that  an  action  of  tort  does  not  survive 
the  death  of  the  party  in  whose  favor  it  existed  prevails,  the  action, 
for  death  does  not  survive  the  beneficiary,10  unless  it  is  preserved 
by  special  enactment 

Distribution. 

Under  the  provision  of  a  majority  of  the  statutes  in  the  United 
States,  the  proceeds  of  the  action  are  distributable  in  the  propor- 
tions provided  by  law  for  the  distribution  of  the  personal  property 
of  an  intestate,  and,  in  the  absence  of  any  express  provision  by 
statute,  it  is  believed  that  this  method  of  distribution  would  be 
followed.  Creditors  of  the  estate  of  the  deceased  are  very  gener- 
ally excluded,  by  the  terms  of  the  acts,  from  the  distribution. 

DAMAGES. 

170.  The  damages  recoverable  are,  in  general,  measured 
by  the  pecuniary  loss  resulting  to  the  beneficiaries 
of  the  action  from  the  death. 

Although  the  phraseology  employed  by  the  various  statutes,  de- 
scriptive of  the  damages  which  may  be  recovered,  is  marked  by  dif- 
ferences and  peculiarities,  it  is  believed  that  the  fundamental  prin- 
ciple is  substantially  the  same  in  each  instance;  that  the  damages 

Mahon  v.  City  of  New  York,  33  N.  Y.  642;  Haggerty  v.  Railroad  Co.,  31 
N.  J.  Law,  349. 

s  Dickins  v.  Railroad  Co.,  23  N.  Y.  158;  Warren  v.  Englehart,  13  Neb.  283,. 
13  N.  W.  401.  But  where  he  inherits  under  the  statute,  he  is,  for  that  reason, 
held  to  be  included.  Steel  v.  Kurtz,  28  Ohio  St.  191;  Bream  v.  Brown,  5  Cold. 
(Tenn.)  168;  Trafford  v.  Express  Co.,  8  Lea  (Tenn.)  96. 

o  The  George  &  Richard,  L.  R.  3  Adm.  &  Ecc.  466,  24  Law  T.  (N.  S.) 
717,  20  Wkly.  Rep.  245;  Nelson  v.  Railway  Co.,  78  Tex.  621,  14  S.  W.  1021. 

10  Woodward  v.  Railway  Co.,  23  Wis.  400;  State  v.  Railroad  Co.  (Md.)  17 
Atl.  88;  Frazier  v.  Railroad  Co.,  101  Ga.  77,  28  S.  E.  662;  Chivers  v.  Rogers, 
50  La,  Ann.  57,  23  South.  100;  Huberwald  v.  Railroad  Co.,  50  La.  Ann.  477, 
23  South.  474;  Schmidt  v.  Woodenware  Co.,  99  Wis.  300,  74  N.  W.  797;  Texas- 
Loan  Agency  v.  Fleming  (Tex.  Civ.  App.)  46  S.  W.  63. 


§    170)  DAMAGES.  405 

are  measured  by  the  pecuniary  loss  resulting  to  the  beneficiaries  of 
the  action  from  the  death.1 

It  may  be  safely  stated  as  the  almost  universal  rule  that  the  re- 
covery must  be  confined  to  the  pecuniary  loss  of  the  beneficiaries, 
to  the  exclusion  of  any  compensation  for  the  loss  of  society  by  way 
of  solatium  for  their  grief  and  wounded  feelings; 2  and  this  rule 
is  followed  irrespective  of  the  occurrence  of  the  word  "pecuniary'' 
in  the  enactment.  Almost  equally  general  is  the  rule  that  punitive 
or  exemplary  damages  cannot  be  recovered,3  although  in  a  few 
states  such  damages  are  recoverable  under  express  provisions  of 
the  enactments,  notably  in  cases  of  "willful  act  or  omission  or  gross 
negligence  of  the  defendant."  * 

§  170.  i  Tiff.  Death  Wrongf.  Act,  §  153;  Louisville  &  N.  R.  Co.  v.  Brown 
<Ala.)  25  South.  609;  Louisville  &  N.  R.  Co.  v.  Taafe's  Adm'r  (Ky.)  50  S.  W. 
850;  Louisville  &  N.  R.  Co.  v.  Eakin's  Adm'r  (Ky.)  45  S.  W.  529. 

2  Illinois  Cent.  R.  Co.  v.  Barron,  5  Wall.  95;  City  of  Chicago  v.  Major,  18 
111.  349;  Chicago  City  Ry.  Co.  v.  Gillam,  27  111.  App.  386;  Barley  v.  Railroad 
Co.,  4  Biss.  430,  Fed.  Cas.  No.  997;  Kansas  Pac.  Ry.  Co.  v.  Cutter,  19  Kan. 
83;  State  v.  Baltimore  &  O.  R.  Co.,  24  Md.  84;  Mynning  v.  Railroad  Co.,  59 
Mich.  257,  26  N.  W.  514;  Hutchins  v.  Railway  Co.,  44  Minn.  5,  46  N.  W.  79; 
Collins  v.  Davidson,  19  Fed.  83;  Schaub  v.  Railroad  Co.,  106  Mo.  74,  16  S. 
W.  924;  Besenecker  v.  Sale,  8  Mo.  App.  211;  Anderson  v.  Railroad  Co.,  35 
Neb.  95,  52  N.  W.  840;  Oldfield  v.  Railroad  Co.,  14  N.  Y.  310;  Tilley  v.  Rail- 
road Co.,  29  N.  Y.  252;  Steel  v.  Kurtz,  28  Ohio  St.  191;  Pennsylvania  R.  Co. 
v.  Zebe,  33  Pa.  St.  318;  Cleveland  &  P.  R.  Co.  v.  Rowan,  66  Pa.  St.  393;  March 
v.  Walker,  48  Tex.  375;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Matula,  79  Tex. 
577,  15  S.  W.  573;  Wells  v.  Railway  Co.,  7  Utah,  482,  27  Pac.  688;  Needham 
v.  Railway  Co.,  38  Vt.  294;  Potter  v.  Railway  Co.,  21  Wis.  372;  Cerrillos  Coal 
R.  Co.  v.  Deserant  (N.  M.)  49  Pac.  807;  Coley  v.  City  of  Statesville,  121 
N.  C.  301,  28  S.  E.  482;  Walker  v.  McXeill,  17  Wash.  582,  50  Pac.  518;  Earth 
v.  Railway  Co.,  142  Mo.  535,  44  S.  W.  778;  Knoxville,  C.  G.  &  L.  R.  Co.  v. 
Wyrick,  99  Tenn.  500,  42  S.  W.  434;  Green  v.  Southern  Pac.  Co.  (Cal.)  55 
Pac.  577. 

s  See  cases  cited  in  section  170,  note  1.  Also  Chicago  &  N.  W.  Ry.  Co.  v. 
Whitton's  Adm'r,  13  Wall.  270;  Donaldson  v.  Railroad  Co.,  18  Iowa,  280; 
Dwyer  v.  Railway  Co.,  84  Iowa,  479,  51  N.  W.  244;  Kelley  v.  Railroad  Co., 
48  Fed.  663;  Whitford  v.  Railroad  Co.,  23  N.  Y.  465,  469;  Pennsylvania  R.  Co. 
v.  Henderson,  51  Pa.  St.  315;  Southern  Cotton  Press  &  Mfg.  Co.  v.  Bradley, 
52  Tex.  587;  Garrick  v.  Railroad  Co.,  53  S.  C.  448,  31  S.  E.  334. 

*  Sayles'  Civ.  St.  Tex.  art.  2901.  See,  also,  Alabama  G.  S.  R.  Co.  v.  Bur- 
gess, 116  Ala.  509,  22  South.  913;  Cerrillos  Coal  R.  Co.  v.  Deserant  (N.  M.)  49 
Pac.  807. 


406  DEATH    BY    WRONGFUL    ACT.  (Ch.   10 

Since  the  action  for  death  does  not  survive,  but  is  created  by 
the  statute,  no  recovery  can  be  had  for  the  mental  or  physical  suf- 
fering of  the  deceased.8  By  the  same  course  of  reasoning  it  would 
seem  that  no  recovery  could  be  had  for  expenses  attending  the  in- 
jury, and  incurred  prior  to  the  death, — as  nursing  and  medical  at- 
tendance,— but  they  have  been  frequently  allowed  in  actions  by 
the  parents  for  the  death  of  minor  children.6  -\  Funeral  expenses  are 
generally  held  to  be  a  legitimate  element  of  damages,  at  least  where 
the  obligation  to  pay  them  rests  on  the  beneficiary.7  The  word 
"pecuniary,"  however,  must  not  be  taken  to  designate  those  losses 
only  which  can  be  computed  on  a  money  basis.  As  was  observed 
in  an  early  New  York  case:  "The  word  'pecuniary'  was  used  in 
distinction  to  those  injuries  to  the  affections  and  sentiments  which 
arise  from  the  death  of  relatives,  and  wrhich,  though  painful  and 
grievous  to  be  borne,  cannot  be  measured  or  recompensed  in  money. 
It  excludes,  also,  those  losses  which  result  from  the  deprivation  of 
the  society  and  companionship,  wrhich  are  equally  incapable  of  be- 
ing defined  by  any  recognized  measure  of  value."  8 

o  See  cases  cited  in  section  170,  note  3;  Florida  Cent.  &  P.  R.  Co.  v.  Fox- 
worth  (Fla.)  25  South.  338. 

«  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker,  33  Ark.  350;  Pennsylvania  Co.  v. 
Lilly,  73  Ind.  252;  Rains  v.  Railway  Co.,  71  Mo.  164;  Roeder  v.  Ormsby,  13 
Abb.  Prac.  (N.  Y.)  334,  22  How.  Prac.  (N.  Y.)  270;  Pennsylvania  R.  Co.  v.  Zebe, 
33  Pa.  St.  318;  Pennsylvania  R.  Co.  v.  Bantom,  54  Pa.  St.  495;  Cleveland  &  P. 
R.  Co.  v.  Rowan,  66  Pa.  St.  393;  Lehigh  Iron  Co.  v.  Rupp,  100  Pa.  St.  95;  City 
of  Galveston  v.  Barbour,  62  Tex.  172;  Sieber  v.  Railway  Co.  (Minn.)  79  N. 
W.  95. 

T  Owen  v.  Brockschmidt,  54  Mo.  285;  Murphy  v.  Railroad  Co.,  88  N.  Y. 
445,  affirmed  in  25  Hun  (N.  Y.)  311;  Petrie  v.  Railroad  Co.,  29  S.  C.  303, 
7  S.  E.  515;  Southern  Ry.  Co.  v.  Covenia,  100  Ga.  46,  29  S.  E.  219,  40  Lawy. 
Rep.  Ann.  253.  Contra,  Consolidated  Traction  Co.  v.  Hone,  60  N.  J.  Law,  444, 
38  Atl.  759;  Trow  v.  Thomas,  70  Vt.  580,  41  Atl.  052.  The  MINNESOTA 
statute  provides  that  out  of  the  proceeds  of  the  action  "any  demand  for  the 
support  of  the  deceased  and  funeral  expenses  duly  allowed  by  the  probate 
court,  shall  be  first  deducted  and  paid."  But  the  fund  is  subject  only  to  ex- 
penses consequential  on  the  injury.  State  v.  Probate  Court  of  Dakota  Co., 
51  Minn.  241,  53  N.  W.  463. 

«  Denio,  J.f  in  Tilley  v.  Railroad  Co.,  24  N.  Y.  471,  29  N.  Y.  252. 


§    170)  DAMAGES.  40T 

Dt-ath  of  Husband  or  Father. 

The  widow  and  minor  orphan  may  recover  for  the  loss  of  sup- 
port which  the  deceased  owed  them  respectively,9 [and  the  measure- 
of  the  damages  is  the  amount  which  deceased  would  probably  have- 
earned  for  their  benefit  during  his  life,10  and  the  accumulations 
from  his  earnings  which  they  might  reasonably  expect  to  inherit.1^/  , 
The  damages  suffered  by  the  child  for  loss  of  support  must  be  con- 
fined to  his  minority.12  In  addition  to  the  wages  or  money  in- 
come earned  by  the  deceased,  it  is  proper  to  consider  the  daily 
attention,  service,  and  care  bestowed  on  the  family.13  If  the  proof 
of  damage  in  the  foregoing  particulars  is  fairly  substantial,  the 
court  will  rarely  disturb  a  verdict  for  failure  of  detailed  evidence.14 
Evidence  regarding  the  number  and  ages  of  the  minor  children  is. 

»  Illinois  Cent.  R.  Co.  v.  Weldon,  52  111.  290;  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Austin,  69  111.  426;  Chicago  &  A.  R.  Co.  v.  May,  108  111.  288. 

i  o  Pennsylvania  R.  Co.  v.  Butler,  57  Pa.  St.  335;  Pennsylvania  Tel.  Co.  v. 
Varnau  (Pa.  Sup.)  15  Atl.  624;  Hudson  v.  Houser,  123  Ind.  309,  24  X.  E, 
243;  Baltimore  &  O.  R.  Co.  v.  State,  24  Md.  271;  Schaub  v.  Railroad  Co.r 
106  Mo.  74,  16  S.  W.  924;  Hogue  v.  Railroad  Co.,  32  Fed.  365;  Shaber  v. 
Railway  Co.,  28  Minn.  103,  9  N.  W.  575;  Bolinger  v.  Railroad  Co.,  36  Minn.  418, 
31  X.  W.  856;  Burton  v.  Railroad  Co.,  82  N.  C.  504;  Pool  v.  Railroad  Co.,  7 
Utah,  303,  26  Pac.  654;  Baltimore  &  O.  R.  Co.  v.  Wightman's  Adin'r,  29  Grat. 
(Va.)  431;  Louisville  &  X.  R.  Co.  v.  Ward's  Adm'r  (Ky.)  44  S.  W.  1112;  Max- 
well v.  Railway  Co.,  1  Marv.  199,  40  Atl.  945. 

11  Lake  Erie  &  W.  R.  Co.  v.  Mugg,  132  Ind.  168,  31  N.  E.  564;    Catawissa  R. 
Co.  v.  Armstrong,  52  Pa.  St.  282;   Castello  v.  Landwehr,  28  Wis.  522;  Lawson 
v.  Railway  Co.,  64  Wis.  447,  24  X.  W.  618. 

12  Baltimore  &  R.  Turnpike  Road  v.  State,  71  Md.  573,  18  Atl.  884;    Balti- 
more &  O.  R.  Co.  v.  State,  33  Md.  542;    Baltimore  £  O.  R.  Co.  v.  State,  41  Md. 
268. 

is  Bolinger  v.  Railroad  Co.,  36  Minn.  418,  31  X.  W.  856;  Florida  Cent.  & 
P.  R.  Co.  v.  Foxworth  (Fla.)  25  South.  338. 

14  Bolinger  v.  Railroad  Co.,  36  Minn.  418,  31  X.  W.  856;  Board  Com'rs 
of  Howard  Co.  v.  Legg,  110  Ind.  479,  11  X.  E.  612;  Smith  v.  Railway  Co., 
92  Mo.  359,  4  S.  W.  129;  Baltimore  &  O.  R.  Co.  v.  State,  24  Md.  271;  Kelley 
v.  Railway  Co.,  50  Wis.  381,  7  X.  W.  291;  Dallas  &  W.  Ry.  Co.  v.  Spicker, 
61  Tex.  427;  Missouri  Pac.  Ry.  Co.  v.  Lehruberg,  75  Tex.  61,  12  S.  W.  838; 
St.  Louis,  A.  &  T.  Ry.  Co.  v.  Johnston,  78  Tex.  536,  15  S.  W.  104;  Secord  v. 
Railway  Co.,  15  TJ.  C.  Q.  B.  631.  In  the  following  cases  the  verdict,  on  the 
evidence,  was  held  excessive:  Illinois  Cent.  R.  Co.  v.  Weldon,  52  111.  290;  Louis- 
ville &  X.  R.  Co.  v.  Trammell,  93  Ala.  350,  9  South.  870;  Button  v.  Windsor, 
34  U.  C.  Q.  B.  4S7;  Morley  v.  Railway  Co.,  16  U.  C.  Q.  B.  504. 


408  DEATH    BY    WRONGFUL    ACT.  (Ch.   10 

of  course,  essential  when  they  are  beneficiaries ; J  5  and  even  when 
the  action  is  for  the  sole  benefit  of  the  widow  such  evidence  has 
been  properly  admitted,  for  the  reason  that  she  must  be  burdened 
with  their  support.16 

Damages  may  be  recovered  in  behalf  of  a  minor  child  for  loss 
of  support,  and  also  for  loss  of  education  and  such  other  conven- 
iences and  comforts  as  he  might  have  reasonably  expected  to  en- 
joy if  his  parent  had  survived.17  Moreover,  it  is  quite  generally 
held  that  loss  of  the  personal  care,  instruction,  and  discipline  of  the 
parent  is  a  proper  element  of  damage.18 

Death  of  Wife. 

For  the  death  of  his  wife  the  husband  is  entitled  to  recover  for 
the  loss  of  her  services,  and  the  measure  of  the  damages  is  their 
reasonable  value.19  And  although  the  loss  must  be  estimated,  as 
nearly  as  possible,  on  a  pecuniary  basis,  the  jury  may  consider  not 
only  the  ability  of  the  deceased  for  usefulness  and  capacity  to  earn 
money,20  but  the  frugality,  industry,  attention,  and  tender  solici- 
tude of  a  wife  and  the  mother  of  children;21  and,  in  the  absence 
of  direct  proof  of  the  foregoing  facts,  it  is  within  the  province  of 

IB  Breckenf elder  v.  Railway  Co.,  79  Mich.  560,  44  N.  W.  957. 

is  Tetherow  v.  Railroad  Co.,  98  Mo.  74,  11  S.  W.  310;  Boeder  v.  Railway  Co., 
100  Mo.  673,  13  S.  W.  714;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Wilson,  1  C.  C.  A. 
25,  48  Fed.  57;  Mulcairns  v.  City  of  Janesville,  67  Wis.  24,  29  N.  W.  5G5; 
Abbot  v.  McCadden,  81  Wis.  563,  51  N.  W.  1079. 

IT  Pym  v.  Railway  Co.,  2  Best  &  S.  759,  10  Wkly.  Rep.  737,  31  Law  J. 
Q.  B.  249,  affirmed  in  4  Best  &  S.  396,  11  Wkly.  Rep.  922,  32  Law  J.  Q.  B. 
377;  Bradley  v.  Railroad  Co.,  122  N.  C.  972,  30  S.  E.  8. 

isTilley  v.  Railroad  Co.,  24  N.  Y.  471,  29  N.  Y.  252;  Board  Com'rs  of 
Howard  Co.  v.  Legg,  93  Tnd.  523;  Stoher  v.  Railway  Co.,  91  Mo.  509,  4  S.  W. 
389;  Dimmey  v.  Railroad  Co.,  27  W.  Va.  32;  Searle's  Adm'r  v.  Railway  Co.,  32 
W.  Va.  370,  9  S.  E.  248;  Baltimore  &  O.  R.  Co.  v.  Wightman's  Adm'r,  29 
Grat.  (Va.)  431;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Maddry,  57  Ark.  306,  21  S.  W. 
472;  May  v.  Railroad  Co.  (N.  J.  Sup.)  42  Atl.  163. 

is  Chicago  &  N.  W.  Ry.  Co.  v.  Whitton's  Adm'r,  13  Wall.  270;  Chant  v. 
Railway  Co.,  Wkly.  Notes  (Eng.)  1806,  p.  134;  Pennsylvania  R.  Co.  v.  Good- 
man, 62  Pa.  St.  329;  Delaware,  L.  &  W.  R.  Co.  v.  Jones,  128  Pa.  St,  308, 
18  Atl.  330. 

20  Chicago  &  N.  W.  Ry.  Co.  \.  Whitton's  Adm'r,  13  Wall.  270. 

21  Pennsylvania  R.  Co.  v.  Goodman,  62  Pa.  St.  329. 


§    170)  DAMAGES.  409 

the  jury  to  make  reasonable  assumptions    in    the    circumstances 

shown.22 

Death  of  Minor  Child. 

For  the  death  of  his  minor  child  a  parent  is  entitled  to  recover 
for  loss  of  services  during  minority,23  the  measure  of  damages  be- 
ing the  value  of  the  services  less  the  probable  cost  of  support.24 
To  justify  such  recovery,  it  is  not  essential  that  the  child  should 
have  been  a  wage  earner,25  or,  in  the  United  States,  at  least,  capable 
of  performing  any  services;26  and  proof  of  services  is,  therefore, 
unnecessary,27  although  proof  of  personal  characteristics  may  be 
shown  to  enhance  damages;28  and  the  jury  may  consider  the  serv- 
ices of  the  child  in  the  family,  such  as  acts  of  kindness  and  atten- 
tion, increasing  the  comfort  of  his  parents.29  The  right  of  the 
court  to  reduce  or  set  aside  excessive  verdicts  is  reserved  in  these 
as  in  other  cases.30 

22  Chant  v.  Railway  Co.,  Wkly.  Notes  (Eng.)  18G6,  p.  134;    Delaware,  L. 
&  W.  R.  Co.  v.  Jones,  128  Pa.  St.  308,  18  Atl.  330. 

23  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker,  33  Ark.  350;   Chicago  v.  Keefe,  114 
111.  222,  2  X.  E.  2G7;    Illinois  Cent.  R.  Co.  v.  Slater,  129  111.  91,  21  N.  E.  575; 
McGovern  v.  Railroad  Co.,  67  N.  Y.  417;   City  of  Galveston  v.  Barbour,  62  Tex. 
172;    Rains  v.  Railway  Co.,  71  Mo.  164;    Pennsylvania  R.  Co.  v.  Zebe,  33  Pa. 
St.  318;    Caldwell  v.  Brown,  53  Pa.  St.  453. 

24  Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  Delaney,  82  111.  198;    Rajnowski  v. 
Railroad  Co.,  74  Mich.  20,  41  X.  W.  847;    Pennsylvania  R.  Co.  v.  Lilly,   73 
Ind.  252;   Brunswig  v.  White,  70  Tex.  504,  8  S.  W.  85. 

25Qldfleld  v.  Railroad  Co.,  14  X.  Y.  310;  Bramall  v.  Lees,  29  Law  T.  Ill; 
Condon  v.  Railway  Co.,  16  Ir.  C.  L.  415;  Ihl  v.  Railway  Co.,  47  X.  Y.  317; 
O'Mara  v.  Railroad  Co.,  38  N.  Y.  445;  Houghkirk  v.  Canal  Co.,  92  X.  Y.  219, 
28  Hun  (X.  Y.)  407. 

26  Ihl  v.  Railroad  Co.,  47  X.  Y.  317;    Oldfield  v.  Railroad  Co..  14  N.  Y.  310; 
O'Mara  v.  Railroad  Co.,  38  X.  Y.  445;    Houghkirk  v.  Canal  Co.,  92  X.  Y.  219; 
Ahern  v.  Steele,  48  Hun,  517,  1  X.  Y.  Supp.  259;    Gorham  v.  Railroad  Co.,  23 
Hun  (X.  Y.)  449. 

27  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker,  39  Ark.  491;    City  of  Chicago  v. 
Major,  18  111.  349;   City  of  Chicago  v.  Scholten,  75  111.  468;    City  of  Chicago  v. 
Hesing,  83  111.  204;    Union  Pac.  Ry.  Co.  v.  Dunden,  37  Kan.  1,  14  Pac.  501; 
Xagel   v.   Railway   Co.,   75   Mo.   653;     Grogan   v.   Foundry   Co.,   87    Mo.   321; 
Brunswig  v.  White,  70  Tex.  504,  8  S.  W.  85. 

28  City  of  Chicago  v.  Scholten,  75  111.  468. 

2»  Louisville,  X.  A.  &  C.  Ry.  Co.  v.  Rush,  127  Ind.  545,  26  X.  E.  1010. 
so  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker,  33  Ark.  350;    Chicago  &  A.   R. 
Co.  v.  Becker,  84  111.  483;    Lake  Shore  &  M.  S.  Ry.  Co.  v.  Sunderland,  2  111. 


410  DEATH    BY    WRONGFUL    ACT.  (Ch.    10 

As  the  parent  has  no  legal  claim  upon  the  services  of  the  child 
after  his  majority,  the  expectancy  of  such  a  benefit  is  not  gener- 
ally admitted  as  an  element  of  damage  for  the  death  of  a  minor 
child.31  In  some  states,  however,  the  damages  are  not  limited  to 
the  value  of  services  during  minority.32 

Loss  of  Prospective  Gifts  and  Inheritances. 

In  addition  to  damages  for  loss  of  services  and  support,  it  is 
within  the  scope  of  the  act  to  recover  for  the  loss  of  pecuniary  bene- 
fits of  which  a  reasonable  expectation  existed.  To  entitle  the  plain- 
tiff to  a  recovery  for  the  loss  of  prospective  gifts,  it  must,  in  gen- 
eral, appear  that,  during  his  lifetime,  the  deceased  conferred  ma- 
terial benefits,  such  as  services,  money,  or  other  gifts,  upon  the 
beneficiary,  and  that  their  continuance  was  a  reasonable  proba- 
bility at  the  time  of  his  death.33  The  measure  of  damages  in  such, 

App.  307;  Union  Pac.  Ry.  Co.  v.  Dunden,  37  Kan.  1,  14  Pac.  501;  Chicago  & 
N.  W.  Ry.  Co.  v.  Bayfleld,  37  Mich.  205;  Cooper  v.  Railway  Co.,  66  Mich.  261r 
33  N.  W.  306;  Gunderson  v.  Elevator  Co.,  47  Minn.  161,  49  N.  W.  65)4;  Strutzet 
v.  Railway  Co.,  47  Minn.  543,  50  N.  W.  690;  City  of  Vicksburg  v.  McLain, 
67  Miss.  4,  6  South.  774;  Parsons  v.  Railway  Co.,  94  Mo.  286,  6  S.  W.  464; 
Hickrnan  v.  Railway  Co.,  22  Mo.  App.  344;  Telfer  v.  Railroad  Co.,  30  N.  J. 
Law,  188;  Pennsylvania  Coal  Co.  v.  Nee  (Pa.  Sup.)  13  Atl.  841;  Ross  v.  Rail- 
way Co.,  44  Fed.  44;  Ewen  v.  Railway  Co.,  38  Wis.  613;  Hoppe  v.  Railway 
Co.,  61  Wis.  359,  21  N.  W.  227;  Schrier  v.  Railway  Co.,  65  Wis.  457,  27  N.  W. 
167. 

31  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker,  33  Ark.  350;  St.  Louis,  I.  M.  & 
S.  Ry.  Co.  v.  Freeman,  36  Ark.  41;  State  v.  Railroad  Co.,  24  Md.  84;  Cooper 
v.  Railway  Co.,  66  Mich.  261,  33  N.  W.  306;  Pennsylvania  R.  Co.  v.  Zebe,  33  Pa. 
St.  318;  Caldwell  v.  Brown,  53  Pa.  St.  453;  Lehigh  Iron  Co.  v.  Rupp,  100  Pa. 
St.  95;  Agricultural  &  Mechanical  Ass'n  v.  State,  71  Md.  86,  18  Atl.  37. 

82  Missouri  Pac.  Ry.  Co.  v.  Peregoy,  36  Kan.  424,  14  Pac.  7;  Gulf,  C.  & 
S.  F.  Ry.  Co.  v.  Compton,  75  Tex.-  667,  13  S.  W.  667;  Scheffler  v.  Railway  Co., 
32  Minn.  518,  21  N.  W.  711;  Birkett  v.  Ice  Co.,  110  N.  Y.  504,  18  N.  E.  108; 
Potter  v.  Railway  Co.,  22  Wis.  615. 

ss  Dalton  v.  Railway  Co.,  4  C.  B.  (N.  S.)  296,  4  Jur.  (N.  S.)  711,  27  Law 
J.  C.  P.  227;  Fordyce  v.  McCants,  51  Ark.  509,  11  S.  W.  694;  Atchisou,  T, 
&  S.  F.  R.  Co.  v.  Brown,  26  Kan.  443;  Cherokee  &  P.  Coal  &  Mining  Co.  v. 
Limb,  47  Kan.  469,  28  Pac.  181;  Richmond  v.  Railway  Co.,  87  Mich.  374,  49- 
N.  W.  621;  Houston  &  T.  C.  Ry.  Co.  v.  Cowser,  57  Tex.  293;  Winnt  v.  Rail- 
way Co.,  74  Tex.  32,  11  S.  W.  907;  Pennsylvania  R.  Co.  v.  Adams,  55  Pa.  St, 
4'JO;  Pennsylvania  R.  Co.  v.  Keller,  67  Pa.  St.  300;  North  Pennsylvania  R, 
Co.  v.  Kirk,  90  Pa.  St.  15;  Lehigh  Iron  Co.  v.  Rupp,  100  Pa.  St.  95;  Hall  v. 


§    170)  DAMAGES.  411 

cases  is  the  amount  which  deceased  might  reasonably  have  been 
expected  to  contribute  to  the  support  of  the  parent  during  the  lat- 
ter's  expectancy  of  life,  not  exceeding  the  expectancy  of  life  of  de- 
ceased at  the  time  of  his  death.34  In  a  Minnesota  case  35  the  rule 
is  thus  stated  by  the  court:  "The  proper  estimate  can  usually  be 
arrived  at  with  approximate  accuracy  by  taking  into  account  the 
calling  of  the  deceased,  and  the  income  derived  therefrom  ;•  his 
health,  age,  talents,  habits  of  industry;  his  success  in  life  in  the 
past,  as  well  as  the  amount  of  aid  in  money  or  services  which  he 
was  accustomed  to  furnish  the  next  of  kin;  and,  if  the  verdict  ia 
greatly  in  excess  of  the  sum  thus  arrived  at,  the  court  will  set  it 
aside  or  cut  it  down." 

Theoretically,  an  adult  child  may  recover  damages  for  the  loss  of 
pecuniary  benefits  resulting  from  the  wrongful  death  of  the  parent. 

Railway  Co.,  39  Fed.  IS;  Missouri  Pac.  Ry.  Co.  v.  Lee,  70  Tex.  496,  7  S.  W, 
857;  Texas  &  P.  Ry.  Co.  v.  Wilder,  35  C.  C.  A.  105,  92  Fed.  953;  Franklin  v. 
Railway  Co.,  3  Hurl.  &  N.  211,  4  Jur.  (X.  S.)  565;  Hetherington  v.  Railway 
Co.,  9  Q.  B.  Div.  160. 

a*  West  Chicago  St.  R.  Co.  v.  Dooley,  76  111.  App.  424.  Recovery  not  per- 
mitted. Sykes  v.  Railway  Co.,  44  Law  J.  C.  P.  191,  32  Law  T.  (N.  S.)  199r 
23  Wkly.  Rep.  473;  Demarest  v.  Little,  47  N.  J.  Law,  28;  Atchison,  T.  &  S.  F. 
Ry.  Co.  v.  Brown,  26  Kan.  443;  Houston  &  T.  C.  Ry.  Co.  TJ.  Cowser,  57  Tex. 
293;  Winnt  v.  Railway  Co.,  74  Tex.  32,  11  S.  W.  907.  Application  of  rule, 
see  Richmond  v.  Railway  Co.,  87  Mich.  374,  49  X.  W.  621;  Baltimore  &  O.  R. 
Co.  v.  Xoell's  Adm'r,  32  Grat.  (Va.)  394;  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Voss 
(Ark.)  18  S.  W.  172;  Fordyce  v.  McCants,  55  Ark.  384,  18  S.  W.  371;  O'Calla- 
ghan  v.  Bode,  84  Cal.  489,  24  Pac.  269;  Chicago  &  A.  R.  Co.  v.  Shannon,  43- 
111.  388;  Illinois  &  St.  L.  R.  Co.  v.  Whalen,  19  111.  App.  116;  Chicago  &  A. 
R.  Co.  v.  Adler,  28  111.  App.  102;  City  of  Salem  v.  Harvey,  29  111.  App.  483, 
affirmed  in  129  111.  344,  21  X.  E.  1076;  Texas  &  P.  Ry.  Co.  v.  Lester,  75  Tex. 
56,  12  S.  W.  955;  Missouri  Pac.  Ry.  Co.  v.  Henry,  75  Tex.  220,  12  S.  W.  828; 
Webb  v.  Railway  Co.,  7  Utah,  363,  26  Pac.  981.  In  XEW  YORK  it  is  suffi- 
cient to  show  the  age,  sex,  condition,  and  circumstances  of  deceased  and  of  the- 
next  of  kin,  leaving  the  jury  to  fix  the  pecuniary  damage  on  this  evidence. 
Oldfield  v.  Railroad  Co.,  14  X.  Y.  310;  O'Mara  v.  Railroad  Co.,  38  X.  Y.  445; 
Houghkirk  v.  Canal  Co.,  92  X.  Y.  219;  Ahern  v.  Steele,  48  Hun,  517,  1  X.  Y. 
Supp.  259;  and  the  same  rule  applies  where  the  basis  of  damage  is  the  loss- 
of  prospective  gifts  and  inheritances,  Tilley  v.  Railroad  Co.,  29  X.  Y.  252; 
Dickens  v.  Railroad  Co.,  1  Abb.  Deo.  504;  Lockwood  v.  Railroad  Co.,  98  X, 
Y.  523;  Lustig  v.  Railroad  Co.,  65  Hun,  547,  20  N.  Y.  Supp.  477;  Bierbauer  v. 
Railroad  Co.,  15  Hun  (X.  Y.)  559,  affirmed  in  77  X.  Y.  588. 

35  Hutchins  v.  Railway  Co.,  44  Minn.  5,  46  X.  W.  79. 


412  DEATH    BY    WRONGFUL    ACT.  (Ch.   10 

Cases,  however,  in  which  the  facts  warrant  such  recovery,  are  com- 
paratively rare.36  The  principle  and  application  of  the  rule  re- 
main unchanged  where  the  decedent  is  a  collateral  relative  of  the 
plaintiff.87  In  these  cases  the  proof  of  the  probability  of  future 
benefits,  had  deceased  lived,  and  the  measure  of  damages  in  assess- 
ing the  loss  caused  by  his  death,  do  not  vary  from  those  already 
stated.  In  Illinois  Cent.  R.  Co.  v.  Barren,38  Nelson,  J.,  said:  "The 
damages  in  these  cases,  whether  the  suit  is  in  the  name  of  the  in- 
jured party,  or,  in  case  of  his  death,  under  the  statute,  by  his  legal 
representative,  must  depend  very  much  on  the  good  sense  and  sound 
judgment  of  the  jury,  upon  all  the  facts  and  circumstances  of  the 
particular  case.  *  *  *  So,  where  the  suit  is  brought  by  the 
representative,  the  pecuniary  injury  resulting  from  the  death  to 
the  next  of  kin  is  equally  uncertain  and  indefinite."  Evidence  of 
the  poverty,89  bad  health,40  or  other  circumstance  of  the  beneficiary, 
is,  in  general,  inadmissible  upon  the  question  of  pecuniary  loss. 
One  exception  to  this  rule  is  sometimes  recognized  in  actions  by 
parents  for  the  death  of  minor  children,  when  such  evidence  is  held 
material  as  bearing  upon  the  probability  of  the  bestowal  of  gifts 
had  deceased  survived.41 

se  Baltimore  &.  O.  R.  Co.  v.  State,  60  Md.  449;  Id.,  63  Md.  135;  Petrie  v. 
€olumbus  &  G.  R.  Co.,  29  S.  C.  303,  7  S.  E.  515. 

ST  Anderson  v.  Railroad  Co.,  35  Neb.  95,  52  N.  W.  840;  Serensen  v.  Railroad 
<Jo.,  45  Fed.  407. 

ss  5  Wall.  90.  If  the  evidence  does  not  show  a  probability  that  injured,  had 
he  lived,  would  have  accumulated  anything,  nominal  damages  only  can  be 
awarded,  Howard  v.  Canal  Co.,  40  Fed.  195;  and,  if  the  verdict  is  grossly  out 
of  proportion  to  the  probability,  the  verdict  will  be  set  aside,  Demarest  v. 
Little,  47  N.  J.  Law,  28. 

as  Illinois  Cent.  R.  Co.  v.  Baches,  55  111.  379;  Chicago  &  N.  W.  Ry.  Co.  v. 
Moranda,  93  111.  302;  Chicago  &  N.  W.  Ry.  Co.  v.  Howard.  6  111.  App.  5G9; 
Heyer  v.  Salsbury,  7  111.  App.  93;  Illinois  Cent.  R.  Co.  v.  Slater,  28  111.  App. 
73,  affirmed  in  129  111.  91,  21  N.  E.  575;  City  of  Delphi  v.  Lowery,  74  Ind.  520; 
Overholt  v.  Vieths,  93  Mo.  422,  6  S.  W.  74;  Chicago  &  N.  W.  Ry.  Co.  v.  Bay- 
field,  37  Mich.  205;  Hunn  v.  Railroad  Co.,  78  Mich.  513,  44  N.  W.  502;  Central 
R.  R.  v.  Rouse,  77  Ga.  393,  3  S.  E.  307.  But  see,  on  the  ILLINOIS  rule,  Penn- 
sylvania Co.  v.  Keane,  143  111.  172,  32  N.  E.  260. 

40  Illinois  Cent.  R.  Co.  v.  Baches,  55  111.  379;  Benton  v.  Railroad  Co.,  55 
Iowa,  496,  8  N.  W.  330. 

*i  Potter  v.  Railway  Co.,  21  Wis.  372;  Johnson  v.  Railway  Co.,  64  Wis. 
425,  25  N.  W.  223;  Wiltse  v.  Town  of  Tilden,  77  Wis.  152,  46  N.  W.  234;  Staal 


§    170)  DAMAGES.  413 

Evidence. 

Standard  life  tables,  as  the  Northampton,  Carlisle,  etc.,  are  always 
admissible  for  the  purpose  of  showing  the  expectation  of  life  of 
deceased.42  Interest  cannot  be  computed  by  the  jury  upon  the 
assessed  damages,43  unless  this  right  is  expressly  conferred  by  stat- 
ute, as  in  New  York.44 

In  assessing  the  damages  of  the  beneficiary  it  is  not  proper  for 
the  jury  to  consider  the  fact  that  he  has,  by  the  death  of  deceased, 
become  possessed  of  other  property,  for  it  is  a  fair  assumption  that,. 
in  any  event,  such  property  would  have  ultimately  belonged  to  the 
beneficiary.45  So,  also,  when  the  beneficiary  receives  money  from 
an  insurance  policy  on  the  life  of  deceased,  the  fact  cannot  be  con- 

v.  Railroad  Co.,  57  Mich.  239.  23  X.  W.  795;  Cooper  v.  Railway  Co.,  66  Mich. 
261,  33  X.  W.  306;  Missouri  Pac.  R.  Co.  v.  Peregoy,  36  Kan.  424,  14  Pac.  7; 
International  &  G.  N.  R.  Co.  v.  Kindred,  57  Tex.  491;  City  of  Chicago  v. 
McCulloch,  10  111.  App.  459;  Illinois  Cent.  R.  Co.  v.  Slater,  28  111.  App.  73,. 
contra;  Annas  v.  Railroad  Co.,  67  Wis.  46,  30  N.  W.  282;  McKeigue  v.  Janes- 
ville,  68  Wis.  50,  31  X.  W.  298. 

42  Donaldson  v.  Railroad  Co.,  18  Iowa,  280;   Coates  v.  Railway  Co.,  62  Iowa, 
486,   17   X.   W.   700;    Worden   v.  Railway  Co.,   76   Iowa,  310,  41  N.  W.   26; 
Louisville,  C.  &  L.  R.  Co.  v.  Mahony's  Adm'x,  7  Bush  (Tenn.)  235;    Cooper  v. 
Railway  Co.,  66  Mich.  261,  33  X.  W.  306;    Hunn  v.  Railroad  Co.,  78  Mich.  513,. 
44  X.  W.  502;   Sellars  v.  Foster,  27  Xeb.  118,  42  X.  W.  907;   Sauter  v.  Railroad 
Co.,  66  X.  Y.  50;    Mississippi  &  T.  R.  Co.  v.  Ayres,  16  Lea  (Tenn.)  725;    San 
Antonio  &  A.  P.  Ry.  Co.  v.  Bennett,  76  Tex.  151,  13  S.  W.  319.    But  they  are 
not  conclusive;    they  are  to  be  considered  with  other  evidence  in  the  case. 
Scheffler  v.  Railway  Co.,  32  Minn.  518,  21  X.  W.  711;    McKeigue  v.  City  of 
Janesville,  68  Wis.  50,  31  N.  W.  298;    Georgia  Railroad  &  Banking  Co.  v. 
Oaks,  52  Ga.  410;    Georgia  R.  Co.  v.  Pittman,  73  Ga,  325;    Beerus  v.  Railway 
Co.,  67  Iowa,  435,  25  X.  W.  693;.  Deisen  v.  Railway  Co.,  43  Minn.  454,  45  X, 
W.  864;   Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Compton,  75  Tex.  667,  13  S.  W.  667;   Sweet 
v.  Railroad  Co.  (R.  I.)  40  Atl.  237;    Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Burnett 
(Tex.  Civ.  App.)  42  S.  W.  314. 

43  Central  R.  Co.  v.  Sears,  66  Ga.  499;    Cook  v.  Railroad  Co.,  10  Hun,  426 
(before  act  of  1870). 

44  Cornwall  v.  Mills,  44  X.  T.  Super.  Ct.  45. 

45  Terry  v.  Jewett,  78  X.  Y.  338,  17  Hun,  395.     It  is  error  to  permit  plaintiff 
to  show  that  intestate  left  no  property,  Koosorowska  v.  Glasser  (Super.  Buff.) 
S  X.  Y.  Supp.  197;   although  cases  are  conceivable  where  this  rule  is  equitable,. 
Grand  Trunk  Ry.  Co.. of  Canada  v.  Jennings,  13  App.  Gas.  800,  58  Law  J- 
P.  C.  1,  59  Law  T.  (X.  S.)  679. 


414  DEATH    BY    WRONGFUL    ACT.  (Ch.   10 

sidered  in  reduction  of  damages.46  And  it  is,  of  course,  immaterial 
that  benefits  from  independent  sources  had  subsequently  accrued 
to  the  beneficiary.47 

Instructions  to  Jury,  and  Verdict. 

Within  broad  limitations,  the  amount  of  the  pecuniary  loss  is 
•within  the  discretion  of  the  jury,  and  instructions  to  that  effect  are 
proper.48  The  instruction,  however,  should  include  a  definite  charge 
upon  the  measure  of  damages  proper  in  the  particular  case,49  con- 
forming to  the  evidence  50  and  the  pecuniary  injury  to  the  benefi- 
ciaries.61 

If  the  amount  of  the  verdict  is  evidently  excessive,  the  court  may 
make  an  alternative  order  that  the  plaintiff  remit  a  part  of  the 
sum  awarded,  or  that  a  new  trial  be  had.52  It  follows,  as  a  corol- 
lary, that  the  court  may,  in  its  discretion,  set  aside  an  inadequate 
verdict,  and  grant  a  new  trial.53 

46  Althorf  v.  Wolfe,  22  N.  Y.  355;    Kellogg  v.  Railroad  Co.,  79  N.  Y.  72; 
.Sherlock  v.  Ailing,  44  Ind.  184;    Carroll  v.  Railway  Co.,  88  Mo.  239;    North 
Pennsylvania  R.  Co.  v.  Kirk,  90  Pa.  St.  15;  Baltimore  &  O.  R.  Co.  v.  Wightman, 
2d  Grat.  (Va.)  431;    Western  &  A.  R.  Co.  v.  Meigs,  74  Ga.  857;    Galvestou, 
H.  &  S.  A.  Ry.  Co.  v.  Cody  (Tex.  Civ.  App.)  50  S.  W.  135. 

47  Davis  v.  Guarnieri,  45  Ohio  St.  470,  15  N.  E.  350;    Georgia  Railroad  & 
Banking  Co.  v.  Garr,  57  Ga.  277. 

48  Illinois  Cent.  R.  Co.  v.  Barren,  5  Wall.  90;    Chicago  &  N.  W.  Ry.  Co.  v. 
Whitton's  Adm'r,  13  Wall.  270;    Pennsylvania  R.  Co.  v.  Ogier,  35  Pa.  St.  60; 
•City  of  Vicksburg  v.  McLain,  67  Miss.  4,  6  South.  774;    Kansas  Pac.  Ry.  Co. 
v.  Cutter,  19  Kan.  83. 

4»  Pennsylvania  R.  Co.  v.  Ogier,  35  Pa.  St.  60;  Pennsylvania  R.  Co.  v. 
Vandever,  36  Pa.  St.  298;  Catawissa  R.  Co.  v.  Armstrong,  52  Pa.  St.  282. 

oo  Chicago  &  N.  W.  R.  Co.  v.  Swett,  45  111.  197;  Chicago  &  A.  R.  Co.  v. 
-Shannon,  43  111.  338;  North  Chicago  Rolling-Mill  Co.  v.  Morrissey,  111  111. 
646;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Dovvd,  115  111.  659,  4  N.  W.  368. 

61  Chicago  &  A.  R.  Co.  v.  Becker,  76  111.  25;    Chicago,  B.  &  Q.  R.   Co.  v. 
Harwood,  80  111.  88. 

62  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker,  39  Ark.  491;    Central  R.  Co.  v. 
Crosby,  74  Ga.  737;   Rose  v.  Railroad  Co.,  39  Iowa,  246;   Hutchins  v.  Railway 
Co.,  44  Minn.  5,  46  N.  WT.  79;    Smith  v.  Railway   Co.,  92  Mo.  360,  4  S.  W. 
129;  Dernarest  v.  Little,  47  N.  J.  Law,  28;   Mclntyre  v.  Railroad  Co.,  37  N.  Y. 
287;    McKay  v.  Dredging  Co.,  92  Me.  454,  43  Atl.  29.     This  rule  is  -followed 
in  WISCONSIN  only  when  the  illegal  portion  of  the  verdict  is  readily  sever- 
able,  and  hence  cannot  apply  in  actions  for  death.     Potter  v.  Railway  Co.,  22 
~Wis.  615. 

es  Mariani  v.  Dougherty,  46  Cal.  26;    Wolford  v.  Mining  Co.,  63  Cal.  483; 


•§    171)  PLEADING.  415 

It  would  seem  to  be  a  logical  conclusion  that  there  could  be  no 
recovery  unless  there  was  pecuniary  loss,  and  this  view  is  sustained 
liy  some  courts.54  In  other  states  it  is  held  that  a  negligent  killing 
necessarily  implies  damage,  and  hence  the  next  of  kin  may  always 
maintain  an  action  for  at  least  nominal  damages.55 

PLEADING. 

171.  In  general  it  is  sufficient  if  the  complaint  alleges  facts 
•which  bring  the  case  fairly  -within  the  statute,1 
•without  stating  that  the  negligence  of  the  defend- 
ant was  such  that,  had  death  not  ensued,  the  per- 
son injured  might  have  maintained  the  action.2 

Negligence  and  Resultant  Injury. 

The  allegations  of  negligence  and  the  resultant  injury  to  the  de- 
ceased are,  subject  to  the  ordinary  rules  of  pleading,  'applicable 
to  all  cases  of  personal  injury. 

E.cixtence  of  Beneficiaries. 

As  the  action  must  be  maintained  for  the  benefit  of  some  per- 
son entitled  thereto  under  the  provisions  of  the  act,  the  existence 

James  v.  Railroad  Co.,  92  Ala.  231,  9  South.  335;  Meyer  v.  Hart,  23  App. 
Div.  131,  48  X.  Y.  Supp.  904;  Connor  v.  City  of  New  York,  28  App.  Div.  186, 
50  N.  Y.  Supp.  972. 

5*  Hurst  v.  Railway  Co.,  84  Mich.  539,  48  N.  W.  44;  Van  Brunt  v.  Railroad 
Co.,  78  Mich.  530,  44  N.  W.  321;  Charlebois  v.  Railroad  Co.,  91  Mich.  59,  51 
X.  W.  812;  McGown  v.  Railroad  Co.,  So  Tex.  289,  20  S.  W.  80;  Regan  v.  Rail- 
way Co.,  51  Wis.  599,  8  N.  W.  292. 

ss  Chicago  &  A.  R.  Co.  v.  Shannon,  43  111.  338;  Chicago  &  N.  W.  Ry.  Co. 
v.  Swett,  45  111.  197;  Quincy  Coal  Co.  v.  Hood,  77  111.  68;  Quin  v.  Moore,  15 
N.  Y.  432;  Ihl  v.  Railroad  Co.,  47  N.  Y.  317;  Lehman  v.  City  of  Brooklyn,  29 
Barb.  (N.  Y.)  234;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Weber,  33  Kan.  543,  6  Pac. 
877;  Johnston  v.  Railroad  Co.,  7  Ohio  St.  336;  Kenney  v.  Railroad  Co.,  49 
Hun,  535,  2  N.  Y.  Supp.  512;  Korrady  v.  Railway  Co.,  131  Ind.  261,  29  N.  E. 
1069. 

§  171.  i  Brown  v.  Harmon,  21  Barb.  (N.  Y.)  508;  Kennayde  v.  Railroad 
Co.,  45  Mo.  255;  White  v.  Maxcy,  64  Mo.  552;  Westcott  v.  Railroad  Co.,  61 
Vt.  438,  17  Atl.  745.  If  the  action  is  based  on  foreign  statute,  the  statute 
must  be  pleaded.  Vanderwerken  v.  Railroad  Co.,  6  Abb.  Prac.  (N.  Y.)  239; 
Chicago  &  W.  I.  R.  Co.  v.  Schroeder,  18  111.  App.  328. 

2  Philadelphia,  W.  &  B.  R.  Co.  v.  State,  58  \i.d.  372. 


416  DEATH    BY    WRONGFUL    ACT.  (Ch.    10 

of  such  person  or  persons  must  be  alleged  in  the  complaint,3  al- 
though it  is  not  necessary  to  give  their  names,*  unless  this  is  specif- 
ically required  by  the  statute.6 

Action  by  Personal  Representatives. 

The  complaint  must  allege  the  appointment  of  plaintiff  as  execu- 
tor or  administrator,  when  the  statute  requires  the  action  to  be 
brought  by  the  personal  representatives  of  the  deceased.6  And  a 
general  denial  does  not  put  in  issue  such  appointment;  such  issue 
must  be  raised  by  special  plea.7 

Allegation  of  Damages. 

In  those  jurisdictions  which  hold  that  the  action  is  not  main- 
tainable unless  the  beneficiaries  have  suffered  pecuniary  loss,8  the 
complaint  must  contain  allegations  to  that  effect.9  But  in  those 
jurisdictions  where  nominal  damages  are  allowed  in  the  absence  of 
proof  of  actual  loss,  such  allegations  are  unnecessary,  and  their 

s  Lamphear  v.  Buckingham,  33  Conn.  237;  Chicago  &  R.  I.  R.  Co.  v.  Mor- 
ris, 26  111.  400;  Quincy  Coal  Co.  v.  Hood,  77  111.  68;  Indianapolis,  P.  &  C.  R. 
Co.  v.  Keely's  Adm'r,  23  Ind.  133;  Stewart  v.  Railroad  Co.,  103  Ind.  44,  2 
N.  E.  208;  Schwarz  v.  Judd,  28  Minn.  371,  10  N.  W.  208;  Serensen  v.  Rail- 
road Co.,  45  Fed.  407;  Louisville  &  N.  R.  Co.  v.  Pitt,  91  Tenn.  86,  18  S.  W. 
118;  Westcott  v.  Railroad  Co.,  61  Vt.  438,  17  Atl.  745;  Woodward  v.  Railway 
Co.,  23  Wis.  400;  Wiltse  v.  Town  of  Tilden,  77  Wis.  152,  46  X.  W.  234;  Chi- 
cago, B.  &  Q.  R.  Co.  v.  Bond  (Neb.)  78  N.  W.  710;  Nohrden  v.  Railroad  Co.  (S. 
'  C.)  32  S.  E.  524;  West  Chicago  St.  R.  Co.  v.  Mabie,  77  111.  App.  176;  Chicago, 
B.  &  Q.  R.  Co.  v.  Oyster  (Neb.)  78  N.-W.  359. 

*  Conant  v.  Griffin,  48  111.  410.  See  Quincy  Coal  Co.  v.  Hood,  77  111.  68; 
Jeffersonville,  M.  &  I.  R.  Co.  v.  Hendricks,  41  Ind.  48;  Budd  v.  Railroad  Co., 
69  Conn.  272,  37  Atl.  683. 

5  MARYLAND  and  NEW  JERSEY  require  this  particularity. 

o  City  of  Atchison  v.  Twine,  9  Kan.  350;  Hagerty  v.  Hughes,  4  Baxt.  (Tenn.) 
222;  Chicago  &  A.  R.  Co.  v.  Smith,  77  111.  App.  492. 

7  Ewen  v.  Railway  Co.,  38  Wis.  613;  Union  Ry.  &  Transp.  Co.  v.  Shacklet, 
119  111.  232,  10  N.  E.  896.  And  see  Burlington  &  M.  R,  Co.  v.  Crockett,  17 
Neb.  570,  24  N.  W.  219. 

a  See  ante,  p.  404;  Chicago,  B.  &  Q.  R.  Co.  v.  Van  Buskirk  (Neb.)  78  N.  W. 
514;  Erb  v.  Morasch  (Kan.  App.)  54  Pac.  323. 

»  Hurst  v.  Railway  Co.,  84  Mich.  539,  48  N.  W.  44;  Regan  v.  Railway  Co., 
51  Wis.  599,  8  N.  W.  292.  Although  it  would  seem  that,  if  the  loss  is  clearly 
deducible  from  the  facts  pleaded,  it  need  not  be  specifically  alleged.  Kelley 
v.  Railway  Co.,  50  Wis.  381,  7  N.  W.  291;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Younger  (Tex.  Civ.  App.)  40  S.  W.  423. 


§    171)  PLEADING.  417 

absence  does  not  render  the  complaint  demurrable.  Thus,  in  an 
Indiana  case,  a  complaint  which  showed  that  the  deceased  left  a 
widow  and  infant  children  surviving  was  held  good  on  demurrer, 
although  it  did  not  directly  allege  that  the  beneficiaries  sustained 
actual  damages,  the  court  saying  that,  in  legal  presumption,  the  in- 
fant children  and  wife  are  entitled  to  the  services  of  a  father  and 
husband,  and  that  such  services  are  valuable  to  them.10 

Amendments. 

Provided  the  amendment  is  not  so  material  as  to  state  a  new 
cause  of  action,  the  declaration  may  be  amended  as  in  other  ac- 
tions, and,  although  made  after  the  action  is  barred  by  the  statute 
of  limitations,  will  relate  back  to  the  commencement  of  the  suit;11 
as  an  amendment  changing  the  relation  of  the  injured  party  from 
that  of  employe'  to  that  of  passenger,12  or  adding  the  allegation 
that  deceased  left  wife  and  children,13  or  alleging  the  provisions 
of  a  foreign  statute,14  or  adding  new15  or  more  particular16  alle- 
gations regarding  the  negligence  of  defendant.  But  when  the 
amendment  contains  a  substantially  new  or  different  cause  of  ac- 
tion, it  will  not  be  allowed.  Thus,  where  a  widow  began  the  ac- 
tion for  the  use  of  herself  and  children,  and,  after  the  expiration 
of  the  period  of  limitation,  sought  to  substitute  the  administrator 
as  plaintiff  for  the  use  of  the  widow,  the  court  said  that  the  fiction 
of  relation  could  not  be  applied  to  defeat  the  defense  of  the  stat- 
ute of  limitations.17 

10  Korrady  v.  Railway  Co.,  29  N.  E.  1069.     But  see,  also,  Haug  v.  Rail-way 
Co.  (N.  D.)  77  N.  W.  97,  42  Lawy.  Rep.  Ann.  664;    District  of  Columbia  v. 
Wilcox,  4  App.  D.  C.  90.     In  Pennsylvania  Co.  v.  Lilly,  73  Ind.  252,  it  was  held 
that  in  an  action  by  a  father  for  the  death  of  a  minor  child,  in  order  to  recover 
for  loss  of  sen-ices  beyond  the  date  of  the  beginning  of  the  suit,  such  damage 
must  be  specifically  pleaded. 

11  Tiff.  Death  Wrongf.  Act,  §  IS". 

12  Kansas  Pac.  Ry.  Co.  v.  Salmon,  14  Kan.  512. 

is  South  Carolina  R.  Co.  v.  Nix,  68  Ga.  572;  Haynie  v.  Railroad  Co.,  9  I1L 
App.  105. 

14  Lustig  v.  Railroad  Co.,  65  Hun,  547,  20  N.  Y.  Supp.  477;  South  Carolina 
R.  Co.  v.  Nix,  68  Ga.  572. 

is  Harris  v.  Railroad  Co.,  78  Ga.  525,  3  S.  E.  355. 

IB  Jeffersonville.  M.  &  I.  R.  Co.  v.  Hendricks,  41  Ind.  48;  Kuhns  v.  Railway 
Co.,  76  Iowa,  67,  40  N.  E.  92;  Moody  v.  Railroad  Co.,  68  Mo.  470. 

17  Flatley  v.  Railroad  Co.,  9  Heisk.  (Tenn.)  230.  See,  also,  Lilly  v.  Railroad. 
BAR.NEG.— 27 


418  DEATH    BY    WRONGFUL   ACT.  (Ch.    10 


EVIDENCE. 

172.  In  actions  for  death  the  proof  of  the  case  must,  in 
general,  be  made  in  the  same  manner  as  in  any 
other  action  the  gist  of  -which  is  the  negligence  of 
the  defendant. 

Character  of  Evidence. 

Owing,  however,  to  the  fact  that  in  many  cases  there  were  no 
witnesses  to  the  accident,  and  that  the  proof  must  be,  in  a  large 
measure,  circumstantial,  less  fullness  and  precision  is  required  than 
where  the  injured  person  is  alive,  and  able  to  testify.1 

Defendant  as  Witness. 

It  is  a  very  general  rule  that  in  actions  by  or  against  executors 
and  administrators  neither  party  can  testify  against  the  other;  and 
this  rule  prevails  in  many  of  the  states  in  actions  for  death,  even 
where  the  common  law,  disqualifying  the  testimony  of  interested 
parties,  has  been  abrogated.  This  exclusion,  however,  is  commonly 
limited  to  testimony  relative  to  transactions  with  or  statements  by 
the  testator  or  intestate.  Where  the  action  is  brought  directly  in 
the  name  of  the  beneficiary,  the  reason  for  the  rule  does  not  exist, 
and  the  rule  itself  is  held  not  to  apply.2  Thus,  in  Missouri,  in  an 
action  by  the  widow,  it  was  held  that  the  defendant  was  a  com- 
petent witness,  although  the  statute  provided  that  in  actions  where 
one  of  the  original  parties  to  the  contract  or  cause  of  action  was 
dead  the  other  should  not  be  allowed  to  testify  in  his  own  favor, 
the  reason  being  that  the  plaintiff  was  not  suing  on  a  cause  of  ac- 

Co.,  32  S.  C.  142,  10  S.  E.  932;  Smith  v.  Railroad  Co.,  84  Ga.  183,  10  S.  E. 
602;  Bell  v.  Railroad  Co.,  73  Ga.  520. 

§  172.  i  Central  R.  Co.  v.  Rouse,  77  Ga.  393,  3  S.  E.  307;  Chicago,  B.  & 
Q.  R.  Co.  v.  Gregory,  58  111.  272;  Missouri  Furnace  Co.  v.  Abend,  107  111.  44; 
Chicago  &  A.  Ry.  Co.  v.  Carey,  115  111.  115,  3  N.  E.  519;  McDermott  v.  Rail- 
way Co.  (Iowa)  47  N.  W.  1037;  Louisville  &  N.  R.  Co.  v.  Brooks'  Adni'x, 
83  Ky.  129;  Maguire  v.  Railroad  Co.,  146  Mass.  379,  15  N.  E.  904;  Buesching 
v.  Gaslight  Co.,  73  Mo.  219;  Galvin  v.  City  of  New  York,  112  N.  Y.  223,  19 
N.  E.  675;  Phillips  v.  Railroad  Co.,  77  Wis.  349,  46  N.  W.  543. 

2  Mann  v.  Weiand,  *81  Pa.  St.  243;  Wallace  v.  Stevens,  74  Tex.  559,  12 
S.  W.  283;  McEwen  v. 'Springfield,  64  Ga.  159.  And  see  Hale  v.  Kearly,  8 
Baxt  (Tenn.)  50. 


§    173)  LIMITATION    OF    COMMENCEMENT    OF    ACTION.  419 

tion  to  which  the  deceased  was  a  party.3  In  Indiana  4  and  Illinois,'5 
where  the  action  is  brought  in  the  name  of  the  executor  or  admin- 
istrator, it  is  held  that  the  defendant  is  disqualified  as  a  witness: 
in  the  former  state,  under  a  statute  providing  that  in  suits  in  which 
an  executor  or  administrator  is  a  party,  involving  matters  which  oc- 
curred during  the  lifetime  of  the  deceased,  where  a  judgment  may 
be  rendered  for  or  against  the  estate,  any  person  who  is  a  necessary 
party  to  the  issue  or  record,  whose  interest  is  adverse  to  the  es- 
tate, shall  not  be  a  competent  witness  against  the  estate;  and  in 
the  latter,  under  a  statute  excluding  parties  and  persons  inter- 
ested from  testifying  in  suits  by  executors  and  administrators. 

LIMITATION  OF  COMMENCEMENT  OP  ACTION. 

173.  The  time  -within  -which  an  action  may  be  brought  for 
wrongful  death  is  governed  by  the  provisions  of 
the  various  statutes,  perhaps  a  majority  adopting 
in  this  respect  the  substance  of  Lord  Campbell's  act 
that  "every  such  action  must  be  commenced  -within 
twelve  calendar  months  after  the  death  of  such  de- 
ceased person."  In  some  states  the  time  is  limited 
from  the  date  of  the  wrongful  act  or  injury,  -while 
in  a  few  instances  no  special  limitation  is  contained 
in  the  statute,  the  period  being  determined  by  the 
general  statute  on  the  limitation  of  actions.1 

The  Limitation  Absolute. 

As  the  right  of  action  is  given  subject  to  the  limitation,  the  limita- 
tion is  an  inseparable  part  of  the  right  itself.  "This  is  not  strictly 
a  statute  of  limitation.  It  gives  a  right  of  action  that  would  not 
otherwise  exist.  It  must  be  accepted  in  all  respects  as  the  statute 

«  Entwhistle  v.  Feighner,  60  Mo.  214. 

*  Hudson  v.  Houser,  123  Ind.  309,  24  N.  E.  243;  Sherlock  v.  Ailing,  44  Ind. 
184. 

e  Forbes  v.  Snyder,  94  111.  374;  Consolidated  Ice-Mach.  Co.  v.  Keifer,  134 
111.  481,  25  N.  E.  799. 

§  173.  i  DELAWARE,  GEORGIA,  IOWA,  KENTUCKY,  MICHIGAN,  NE- 
VADA, NORTH  DAKOTA,  RHODE  ISLAND,  SOUTH  DAKOTA,  TENNES- 
SEE, and  WASHINGTON. 


420  DEATH    BY    WRONGFUL    ACT.  (Ch.   10 

gives  it."  2  A  subsequent  change  in  the  period  of  limitation  will  not 
work  an  extension  of  the  time  within  which  an  existing  right  of  action 
may  be  enforced.8  Since  the  time  within  which  the  suit  may  be 
brought  operates  as  a  limitation  of  the  created  liability,  the  limitation 
need  not  be  pleaded,  and,  if  it  appears  from  the  complaint  that  the 
action  was  not  brought  within  the  time  limited,  it  is  demurrable.4 

It  would  seem  to  follow  that  no  allegation  would  be  sufficient  to- 
excuse  delay  in  the  commencement  of  the  action,  unless  the  language 
of  the  particular  statute  contained  special  provisions  for  exceptions 
and  disabilities.  This  occurs  in  the  statutes  of  Texas  and  Kentucky, 
where  the  ordinary  disabilities  are  made  available  in  this  class  of 
actions.5  What  constitutes  a  commencement  of  the  suit  must  be 
determined  by  the  statutes  regulating  practice  in  different  states. ft 
Where  the  limitation  is  to  a  certain  period  "after  the  death"  or 
"after  the  act  or  omissions,"  there  is  no  difficulty  in  deciding  when 
the  statute  begins  to  run.  But  certain  of  the  limitations  are  sus- 
ceptible of  different  meanings,  and  must  then  be  construed  with  the 
other  provisions  of  the  particular  statute.  Thus,  under  a  statute 
limiting  the  time  "within  one  year  after  the  cause  of  action  shall  have 
arisen,"  it  was  held  that  the  administrator  must  be  appointed  before 

2  Taylor  v.  Coal  Co.,  94  N.  C.  525,  approved  in  Best  v.  Town  of  Kinston, 
106  N.  C.  205,  10  S.  E.  997.  And  in  The  Harrisburg,  119  U.  S.  199,  7  Sup.  Ct. 
140,  Waite,  C.  J.,  observed:  "The  statute  creates  a  new  legal  liability,  with  the 
right  to  a  suit  for  its  enforcement,  provided  the  suit  is  brought  within  twelve- 
months, and  not  otherwise.  The  time  within  which  the  suit  must  be  brought 
operates  as  a  limitation  of  the  liability  itself  as  created,  and  not  of  the  remedy- 
alone."  And  see  Hill  v.  Town  of  New  Haven,  37  Vt.  501. 

s  Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Hine,  25  Ohio  St.  629;  Benjamin  v. 
Eldridge,  50  Cal.  612.  See  Commonwealth  v.  Boston  &  W.  R.  Corp.,  11  Gush. 
(Mass.)  512;  Commonwealth  v.  East  Boston  Ferry,  13  Allen  (Mass.)  589. 

*  Hanna  v.  Railroad  Co.,  32  Ind.  113,  approved  in  Jeffersonville,  M.  &  I. 
R.  Co.  v.  Hendricks,  41  Ind.  48.  And  see  George  v.  Railway  Co.,  51  Wis.  603,- 
8  N.  W.  374. 

o  Nelson  v.  Railway  Co.,  78  Tex.  621,  14  S.  W.  1021.  But  where  the  chil- 
dren are  adults  the  statute  begins  to  run  against  them  at  once.  Paschal  v. 
Owen,  77  Tex.  583,  14  S.  W.  203.  And  see  Louisville  &  N.  R.  Co.  v.  Sanders, 
86  Ky.  259,  5  S.  W.  563. 

e  Under  the  IOWA  Code  the  delivery  of  the  notice  to  the  sheriff,  and  not  the 
filing  of  the  petition,  is  the  commencement  of  the  action.  Ewell  v.  Railroad 
Co.,  29  Fed.  57.  And  see  Parish  v.  Town  of  Eden,  62  Wis.  272,  22  N.  W.  399. 


§    173)  LIMITATION    OF   COMMENCEMENT   OF    ACTION.  421 

the  cause  of  action  arose  and  the  limitation  began  to  run.7  But, 
when  the  time  was  limited  to  a  year  "after  the  cause  of  action  shall 
accrue,"  it  was  held  that  the  time  began  to  run  at  the  death,  because 
Ihe  right  of  action  was  given  by  the  statute  directly  to  the  beneficia- 
ries, without  the  intervention  of  an  administrator.8  And  a  proviso 
that  the  action  must  be  begun  "within  two  years"  has  been  held  to 
mean  within  two  years  from  the  death.9  Where  the  limitation  of 
this  class  of  actions  is  left  to  be  determined  by  the  general  statute 
on  limitations,  no  general  rule  can  be  laid  down;  reference  must  be 
had  to  the  decisions  under  the  particular  statute.  Thus,  in  Iowa, 
the  general  statute  places  a  limitation  of  two  years  "after  their  causes 
accrue"  on  "actions  founded  on  injuries  to  the  person,"  and  the  stat- 
ute giving  the  action  in  case  of  death  provides  that  "such  action  shall 
be  deemed  a  continuing  one,  and  to  have  accrued  to  such  representa- 
tive or  successor  at  the  same  time  it  did  to  the  deceased  if  he  had  sur- 
vived," and  it  is  held  that  the  time  begins  to  run  with  the  injury.10 
But  tinder  a  similar  limitation  in  Kentucky  it  would  appear  that  the 
time  does  not  begin  to  run  until  the  qualification  of  the  adminis- 
trator.11 

Where,  by  express  provision  of  statute,  a  notice  is  required  before 
an  action  can  be  commenced  against  a  municipality  to  recover  for 
personal  injuries,  it  is  at  least  questionable  if  the  giving  of  the  notice 
is  a  condition  precedent  to  the  commencement  of  an  action  to  re- 
cover for  death  resulting  from  such  injuries.  In  New  Hampshire 
it  has  been  held  that  such  notice  is  not  necessary  in  case  of  death.12 

7  Andrews  v.  Railroad  Co.,  34  Conn.  57;  Sherman  v.  Stage  Co.,  24  Iowa,  515. 
The  latter  decision  was  made  under  the  provision  of  the  Code  that  such  ac- 
tions should  be  barred  two  years  "after  their  causes  accrued,"  which  has  now 
been  changed. 

s  Kennedy  v.  Burrier,  36  Mo.  128. 

»  Hanna  v.  Railroad  Co.,  32  Ind.  113. 

10  Ewell  v.  Railway  Co.,  29  Fed.  57.     See,  also,  Sherman  v.  Stage  Co.,  22 
Iowa,   556.     So,   also,   in  TENNESSEE.     Fowlkes  v.   Railroad   Co.,    5   Baxt. 
(Tenn.)  663. 

11  Louisville  &  N.  R.  Co.  v.  Sanders,  86  Ky.  259,  5  S.  W.  563.     In  the  orig- 
inal act  the  action  was  to  be  commenced  within  one  year  from  the  death,  and 
it  was  held  that,  unless  the  petition  showed  that  the  action  was  barred,  the 
statute  must  be  pleaded.     Chiles  v.  Drake,  2  Mete.  (Ky.)  146. 

12  Clark  v.  City  of  Manchester,  62  N.  H.  577;  Jewett  v.  Keene,  62  N.  H.  701. 


422  DEATH    BY    WRONGFUL    ACT.  (Ch.    10 

And  in  Wisconsin  it  has  been  held  that  a  failure  to  give  a  notice 
within  90  days  after  the  happening  of  the  injury  would  not  defeat 
an  action  by  the  administrator  for  the  death,  where  the  death  oc- 
curred within  90  days  after  the  happening  of  the  injury.13 

is  McKeigue  v.  City  of  Janesville,  68  Wis.  50,  31  N.  W.  298.    See  Parish 
v.  Town  of  Eden,  62  Wis.  272,  22  N.  W.  399. 


§§    174-175)      NEGLIGENCE    OF    MUNICIPAL   CORPORATIONS.  423 

CHAPTER  XI. 

NEGLIGENCE  OF  MUNICIPAL  CORPORATIONS. 

174-175.  Public  and  Private  Corporations. 

176.  Public  Corporations— Definition. 

177.  Right  of  Action. 

178.  Liability  for  Injuries. 

179.  Alteration   of   Grades. 

180.  Acts  of  Officers  or  Agents. 

181.  Acts  Ultra  Vires. 

182.  Judicial  or  Legislative  Duties. 

183.  Conflagrations  and  Destruction  by  Mobs. 

184.  Public  Health  and  Sanitation. 

185.  Quasi  Municipal  Corporations. 

PUBLIC  AND  PRIVATE  CORPORATIONS. 

174.  Public  corporations   are   created   and  exist  solely  in 

the   public  interest,  as  fractional   parts  of  the  gen- 
eral government. 

175.  Private  corporations  owe  their  existence,  at  least  in 

part,  to  the  expectation  of  personal  emolument. 

Although  the  torts  of  private  corporations  form  no  part  of  the 
present  discussion,  it  is  essential  that  the  distinction  between  puh- 
lic  and  private  corporations  be  clearly  drawn.  Each  is  the  creature 
of  the  legislature,  but  their  powers,  duties,  and  liabilities  are  en- 
tirely dissimilar.  The  essential  distinction  between  the  two  classes 
is  this:  The  private  corporation  possesses,  at  least  partially,  as 
the  object  of  its  existence,  the  advancement  of  private  or  personal 
interests,  while  the  public  corporation  can,  by  the  very  conditions 
of  its  existence,  entertain  and  foster  no  purpose  which  is  not  purely 
public  in  its  character.  Moreover,  the  private  corporation  is  called 
into  existence  by  the  volition  of  the  interested  parties,  assisted  by 
the  legislature,  or  in  pursuance  of  its  acts  passed  in  that  behalf. 
Public  corporations  are  the  passive  offspring  of  the  state,  called  into 
being  at  its  pleasure,  and  holding  their  entire  interests  and  fran- 
chises as  the  exclusive  property  and  domain  of  the  government  itself. 


424  NEGLIGENCE   OF    MUNICIPAL    CORPORATIONS.  (Ch.   11 

In  the  case  of  the  former  the  state  enters  into  a  contract,  and,  when 
its  terms  have  been  assented  to  by  the  incorporators,  their  rights 
are  fixed  and  irrevocable,  and  cannot  be  impaired  or  abrogated  by 
subsequent  legislation.1  But  the  relation  existing  between  the  state 
and  a  municipal  or  other  purely  public  corporation  is  by  no  means 
that  of  contract,  and,  if  certain  constitutional  limitations  are  ex- 
cepted,  the  power  of  control  which  the  legislature  may  exercise  over 
it  is  practically  unlimited.2  In  U.  S.  v.  Baltimore  &  O.  K.  Co.3  the 
court  says:  "A  municipal  corporation,  like  the  city  of  Baltimore, 
is  a  representative  not  only  of  the  state,  but  is  a  portion  of  its  gov- 
ernmental power.  It  is  one  of  its  creatures,  made  for  a  specific 
purpose,  to  exercise  within  a  limited  sphere  the  powers  of  the  state. 
The  state  may  withdraw  these  local  powers  of  government  at  pleas- 
ure, and  may,  through  its  legislature,  or  other  appointed  channels, 
govern  the  local  territory  as  it  governs  the  state  at  large.  It  may 
enlarge  or  contract  its  powers,  or  destroy  its  existence."  * 

PUBLIC  CORPORATIONS— DEFINITION. 

176.  For  the  purposes  of  this  chapter,  public  corporations 
are  either 

(a)  Municipal  corporations  proper,  voluntarily  assuming 

the  responsibilities  incident  to  the  association,  or 

(b)  Quasi   municipal  corporations,  consisting  of  political 

divisions,  created  for  convenience,  "without  the  ac- 
tual consent  of  their  constituents. 

* 

Municipal  corporations,  properly  speaking,  are  voluntary  associa- 
tions to  which  an  actual,  expressed  consent  has  been  given  by  the 

§§  174-175.  i  Dartmouth  College  v.  Woodward,  4  Wheat.  518;  1  Dill.  Mun. 
Corp.  (3d  Ed.)  §  52. 

2  Dartmouth  College  v.  Woodward,  4  Wheat.  518;  Cheaney  v.  Hooser,  9  B. 
Mon.  (Ky.)  330;  People  v.  Morris,  13  Wend.  (N.  Y.)  325;  Inhabitants  of  Yar- 
mouth v.  Inhabitants  of  North  Yarmouth,  34  Me.  411;  Girard  v.  City  of  Phila- 
delphia, 7  Wall.  1;  Tinsman  v.  Eailroad  Co.,  26  N.  J.  Law,  148;  City  of  Pater- 
son  v.  Society  for  Establishing  Useful  Manufactures,  24  N.  J.  Law,  385; 
City  of  Clinton  v.  Cedar  Kapids  &  M.  R.  R.  Co.,  24  Iowa,  455;  Sloan  v.  State, 
8  Blackf.  (Ind.)  361. 

a  17  Wall.  322. 

*  See,  also,  cases  collected  in  1  Dill.  Mun.  Corp.  (3d  Ed.)  §  54,  note. 


§    177)  RIGHT    OF    ACTION.  425 

people  affected.  The  charters  or  enabling  acts  of  corporations  of 
this  class  confer  upon  them  extended  benefits  and  enlarged  liabilities. 
Quasi  municipal  corporations  are  merely  political  divisions  of  the 
state,  created  for  purposes  of  convenience  in  administering  the  gen- 
eral government.  They  are  created  without  the  volition  or  con- 
sent of  the  inhabitants  of  the  territory  involved,  and  are,  therefore, 
more  restricted  in  their  powers,  rights,  and  responsibilities.  Coun- 
ties, townships,  school  districts,  and  the  New  England  towns  belong 
to  this  class  of  corporations.") 

RIGHT  OF  ACTION. 

177.  A  private  action  may  be  maintained  against  a  munic- 
ipal corporation  for  injury  resulting  from  negli- 
gence in  the  performance  of  duties  not  essentially 
public  in  character,  and  intended  for  the  special 
benefit  of  the  locality  and  its  inhabitants.1 

§  177.  i  City  of  Galveston  v.  Posnainsky.  02  Tex.  118.  In  this  case  Stayton, 
J.,  says:  "Persons  or  corporations  that  voluntarily  assume  and  undertake  the 
performance  of  a  work,  even  though  it  be  quasi  public  in  its  character,  ought 
to  be  held  to  impliedly  contract  that  they  will  exercise  due  care  in  its  perform- 
ance, and  for  a  neglect  in  this  respect  should  be  liable  for  the  resulting  damage. 
We  do  not  wish,  however,  to  be  understood  to  assert  that  there  is  a  contract 
between  the  state  and  a  municipal  corporation  accepting  a  charter,  but  simply 
to  assert  that,  when  such  a  corporation  accepts  a  charter,  giving  denned  powers, 
the  law  imposes  the  duty  of  faithfully  exercising  them,  and  gives  an  action  for 
misfeasance  or  neglect  in  this  respect  to  any  person  who  may  be  injured  by 
such  failure  of  duty."  Curran  v.  City  of  Boston,  151  Mass.  505,  24  N.  E.  781; 
Thayer  v.  City  of  Boston,  19  Pick.  (Mass.)  511;  Con  way  v.  City  of  Beaumont, 
61  Tex.  10;  Barnes  v.  District  of  Columbia,  91  U.  S.  541:  Weightmau  v. 
Corporation  of  Washington,  1  Black,  39;  Supervisors  Rock  Island  Co.  v.  U.  S., 
4  Wall.  435;  Chicago  City  v.  Robbins,  2  Black,  418;  Western  College  of 
Homeopathic  Medicine  v.  City  of  Cleveland,  12  Ohio  St.  375;  Simmer  v.  City 
of  St.  Paul,  23  Minn.  408;  Kobs  v.  City  of  Minneapolis,  22  Minn.  160;  Reed 
v.  City  of  Belfast,  20  Me.  246;  City  of  Logausport  v.  Wright,  25  Ind.  513;  Han- 
non  v.  St.  Louis  Co.,  62  Mo.  313;  Kiley  v.  City  of  Kansas,  87  Mo.  103;  Noble 
v.  City  of  Richmond,  31  Grat.  (Va.)  271;  Oilman  v.  Town  of-Laconia,  55  N.  H. 
130;  Rowe  v.  City  of  Portsmouth,  56  N.  H.  291;  Meares  v.  Commissioners,  31 
N.  C.  73;  Smoot  v.  Mayor,  etc.,  24  Ala.  112;  Jones  v.  City  of  New  Haven,  34 
Conn.  1;  O'Neill  v.  City  of  New  Orleans.  30  La.  Ann.  220;  Wallace  v.  City  of 
Muscatine,  4  G.  Greene  (Iowa)  373;  Kenworthy  v.  Town  of  Irouton,  41  Wis. 


426  NEGLIGENCE    OF    MUNICIPAL   CORPORATIONS.  (Cb.    11 

/  It  is  a  general  principle  that  municipal  corporations  are  not  liable 
in  private  actions  for  omissions  or  neglect  in  the  performance  of 
a  corporate  or  governmental  duty  imposed  on  them  by  law,  when 
such  city  or  other  corporation  derives  no  benefit  therefrom  in  it» 
corporate  capacity,  junless,  of  course,  such  action  is  given  by  stat- 
ute.2 And  it  should  be  here  observed  that,  to  determine  the  ques- 
tion of  liability  in  any  case,  a  true  interpretation  of  the  statutes  un- 
der which  the  corporation  is  created  is  absolutely  essential,3  and 
in  many  instances  the  liability  of  a  municipality  depends  exclusively 
upon  the  statute.4 

As  to  what  duties  are  public  and  governmental  and  what  are 
private  or  corporate  duties,  there  is  a  great  lack  of  harmony  in  the 
courts,  and  the  decisions  do  not  furnish  any  clear  basis  of  distinc- 
tion. Judge  Dillon  says: B  "This  liability  on  the  part  of  municipal 
corporations  springs,  as  we  think,  from  the  particular  nature  of 
the  duty  enjoined,  which  must  relate  to  the  local  or  special  interests 

647;  City  of  Helena  v.  Thompson,  29  Ark.  569;  Western  Saving  Fund  Soc. 
of  Philadelphia  v.  City  of  Philadelphia,  31  Pa.  St.  175;  Erie  City  v.  Schwingle, 
22  Pa.  St.  384;  Anne  Arundel  County  Com'rs  v.  Duckett,  20  Md.  469;  Hewison, 
v.  City  of  New  Haven,  37  Conn.  475;  Town  of  WaJtham  v.  Kemper,  55  111. 
346;  City  of  Springfield  v.  Le  Claire,  49  111.  476;  White  v.  Bond  Co.,  58  111. 
298;  City  of  Dayton  v.  Pease,  4  Ohio  St.  80;  Requa  v.  City  of  Rochester,  45- 
N.  Y.  129;  Conrad  v.  Village  of  Ithaca,  16  N.  Y.  158;  Rochester  White  Lead 
Co.  v.  City  of  Rochester,  3  N.  Y.  463;  Morey  v.  Town  of  Newfane,  8  Barb. 
(N.  Y.)  645;  Frederick  v.  City  of  Columbus,  58  Ohio  St.  538,  51  N.  E.  35;  City 
of  Belleville  v.  Hoffman,  74  111.  App.  503;  Vaughtman  v.  Town  of  Waterloo, 
14  Ind.  App.  649,  43  N.  E.  470;  Brink  v.  Borough  of  Dunmore,  174  Pa.  St. 
395,  34  Atl.  598;  Mersey  Docks  &  Harbour  Board  v.  Penhallow,  L.  R.  1  H. 
L.  93;  Scott  v.  Manchester,  37  Eng.  Law  &  Eq.  495. 

2  Curran  v.  City  of  Boston,  151  Mass.  505,  24  N.  E.  781;    Oliver  v.   City 
of  Worcester,  102  Mass.  489.     And  see  cases  cited  in  note  1,  supra. 

3  Snider  v.  City  of  St.  Paul,  51  Minu.  466,  53  N.  W.  763;    Gibbs  v.  Docksr 
3  Hurl.  &  N.  164;   City  of  Detroit  v.  Putnam,  45  Mich.  263,  7  N.  W.  815. 

*  Reed  v.  City  of  Madison,  83  Wis.  171,  53  N.  W.  547;  Kollock  v.  City  of 
Madison,  84  Wis.  458,  54  N.  W.  725;  Stilling  v.  Town  of  Thorp,  54  Wis.  528, 
11  N.  W.  906;  Roberts  v.  City  of  Detroit,  102  Mich.  64,  60  N.  W.  450.  And 
the  right  to  sue  is  subject  to  limitation  in  municipal  charter  requiring  notice 
of  injury,  and  limiting  time  within  which  action  may  be  brought.  Nichols 
v.  City  of  Minneapolis,  30  Minn.  545,  16  N.  W.  410;  Morgan  v.  City  of  Des- 
Moines,  54  Fed.  456;  Berry  v.  Town  of  Wauwatosa,  87  Wis.  401,  58  N.  W. 
751.  And,  generally,  see  Bacon  v.  City  of  Boston,  154  Mass.  100,  28  N.  E.  9, 

e  Dill.  Muu.  Corp.  (4th  Ed.)  §  967. 


§    177)  RIGHT    OF    ACTION.  42J 

of  the  municipality,  and  be  imperative,  and  not  discretionary,  legis- 
lative, or  judicial;  and  from  the  means  given  for  its  performance,, 
which  must  be  ample,  or  such  as  were  considered  so  by  the  legisla- 
tors, and  not  from  the  supposed  circumstance  that  they  received 
and  accepted  their  charters  or  grants  of  powers  and  franchises 
upon  an  implied  contract  with  the  state  that  they  would  discharge 
their  corporate  duties,  and  that  this  contract  inures  to  the  benefit 
of  every  individual  interested  in  its  performance."  Referring,  how- 
ever, to  the  distinction  attempted  to  be  drawn  between  negligence 
of  the  servants  of  a  town  or  city  in  the  performance  of  a  duty  im- 
peratively required  and  one  voluntarily  assumed  by  authority  of  the 
statute,  Mr.  Justice  Allen  observes:6  "In  our  opinion,  this  dis- 
tinction does  not  affect  the  resulting  liability.  There  are  many  pro- 
visions of  statute  by  which  all  municipal  corporations  must  do  cer- 
tain things  and  may  do  certain  other  things,  in  each  instance  with 
a  view  solely  to  the  general  good.  In  looking  at  these  provisions  in 
detail,  it  is  impossible  to  suppose  that  the  legislature  have  intended 
to  make  this  distinction  a  material  one  in  determining  the  question 
of  corporate  liability  to  private  actions.  For  example,  towns  must 
maintain  pounds,  guide  posts,  and  burial  grounds,  and  may  establish 
and  maintain  hospitals,  workhouses,  or  alinshouses.  *  *  *  In 
all  these  cases  the  duty  is  imposed  or  the  authority  conferred  for 
the  general  benefit.  The  motive  and  the  object  are  the  same,  though 
in  some  instances  the  legislature  determines  finally  the  necessity  or 
expediency,  and  in  others  it  leaves  the  necessity  or  expediency  to- 
be  determined  by  the  towns  themselves.  But  when  determined,  and 
when  the  service  has  been  entered  upon,  there  is  no  good  reason 
why  a  liability  to  a  private  action  should  be  imposed  when  a  town 
voluntarily  enters  upon  such  a  beneficial  work,  and  withheld  when 
it  performs  the  service  under  the  requirement  of  an  imperative  law.'r 
Although,  as  already  stated,  it  is  not  possible  to  reconcile  ah1  the 
decisions  in  actions  where  it  has  been  sought  to  hold  municipalities 
responsible  for  injuries  to  persons  or  property  sustained  through 
negligence  or  wrongdoing  of  the  cities  or  their  agents,  it  is  believed 
that  most  of  the  cases  can  be  distributed  into  general  classes,  which 
have  come  to  be  quite  generally  recognized. 

e  Tindley  v.  City  of  Salem,  137  Mass.  171. 


428  NEGLIGENCE    OF    MUNICIPAL   CORPORATIONS.  (Ch.    11 


LIABILITY  FOR  INJURIES. 

178.  A  municipal  corporation  is  liable 

(a)  When  the  act  itself  has  a  direct  tendency,  regardless 
of  the  manner  of  performance,  to  injure  property, 
or  is  of  such  a  nature  that  unskillful  performance 
•will  surely  result  in  such  injury;  or 
<b)  When  the  act  is  undertaken  voluntarily  in  anticipa- 
tion of  a  direct  profit  to  the  corporation,  including 
those  cases  where  the  pecuniary  interest  to  the  cor- 
poration consists  in  avoiding  liability  and  expense, 
and  in  economical  construction  and  maintenance. 

'When  the  Act  Inevitably  Results  in  Injury. 

The  municipality  is  liable  to  respond  in  damages  to  the  person 
whose  property  is  injured  when  such  injury  is  the  direct  and  natural 
result  of  the  act  complained  of,  and  the  act  is  not  performed  under 
special  legislative  sanction.1  Where  the  city  of  Milwaukee,  under 
special  authority  of  the  legislature,  made  certain  harbor  improve- 
ments in  a  sufficiently  skillful  manner,  but  the  natural  tendency  of 
which  was  to  injure  plaintiff's  property,  no  recovery  was  allowed.2 
A  common  instance  of  this  class  of  cases  is  that  of  trespass  com- 
mitted by  the  city  in  entering,  before  condemnation,  on  private  prop- 
erty, for  municipal  purposes, — as  constructing  a  sewer.3  This  prop- 
osition is  elementary  in  character,  and  does  not  properly  fall  within 
the  subject  under  consideration,  as  it  does  not  involve  any  ques- 
tion of  negligence.  The  performance  of  the  act  itself,  however  it  is 
done,  must  necessarily  cause  damage  to  the  owner  of  the  property. 

§  178.  i  Proprietors  of  Locks  &  Canals  on  Merrimack  River  v.  City  of  Low- 
ell, 7  Gray  (Mass.)  223  (discharging  sewer  and  drains  into  plaintiff's  canals); 
Haskell  v.  New  Bedford,  108  Mass.  208  (discharging  filth  by  sewer  into  plain- 
tiff's docks). 

2  Alexander  v.  City  of  Milwaukee,  16  Wis.  247.  In  this  case  it  would,  at 
least,  seem  debatable  that  the  plaintiff  was  entitled  to  compensation  under 
the  constitutional  prohibition  against  the  "taking"  of  property.  See  Punipelly 
T.  Canal  Co.,  13  Wall.  1GG. 

s  Hildreth  v.  City  qf  Lowell,  11  Gray  (Mass.)  345;  Ashley  v.  City  of  Port 
Huron,  35  Mich.  296.  Cf.  Montgomery  v.  Gilmer,  33  Ala,  116,  with  Wilson 
v.  Mayor,  etc.,  1  Denio  (N.  Y.)  595. 


§    178)  LIABILITY    FOR   INJURIES.  429s 

Negligent  Performance  of  Act  Naturally  Inducing  Injury. 

Closely  bordering  on  acts  of  the  foregoing  class  are  those  of  such 
a  nature  that  their  unskillful  or  negligent  performance  would  nat- 
urally result  in  injury  to  private  property.  Thus,  in  the  construc- 
tion of  bridges  over  natural  streams,  it  is  evident  that  the  failure 
to  make  due  provision  for  the  passage  of  the  water  will  inevitably 
result  in  damage  to  those  whose  property  shall  be  inundated  in 
consequence.  The  general  law  in  such  cases  is  thus  stated  by  Shaw, 
C.  J.,  in  a  Massachusetts  case:4  "We  take  it  to  be  well  settled  in 
this  commonwealth  that  in  ah1  cases  where  a  highway,  turnpike, 
bridge,  town  way,  or  other  way  is  laid  across  a  natural  stream  and 
water  course  it  is  the  duty  of  those  who  use  this  franchise  or  priv- 
ilege to  make  provision  by  open  bridges,  culverts,  or  other  means 
for  the  free  current  of  the  water,  so  that  it  shall  not  be  obstructed 
and  pent  up  to  flow  back  on  private  lands  or  public  ways."  It  is- 
held  in  many  cases,  and  is  sometimes  stated  to  be  the  general  law, 
that  municipalities  are  not  liable  for  damage  resulting  from  de- 
fective plans  of  their  agents  or  officers,  but  are  liable  only  for  dam- 
ages resulting  from  the  negligent  execution  thereof.5  The  argu- 
ment is  something  as  follows:  The  city  must  act  through  the  agency 

*  Lawrence  v.  Inhabitants  of  Fairhaven,  5  Gray  (Mass.)  110.  Insufficient 
and  obstructed  culvert,  Parker  v.  City  of  Lowell,  11  Gray  (Mass.)  353;  Roch- 
ester White  Lead  Co.  v.  City  of  Rochester,  3  X.  Y.  463;  Weigh trnan  v.  Wash- 
ington Corp.,  1  Black.  39. 

5  Van  Pelt  v.  City  of  Davenport,  42  Iowa,  308;  Mills  v.  City  of  Brooklyn, 
32  X.  Y.  489;  Lynch  v.  Mayor,  etc.,  76  N.  Y.  61;  Smith  v.  New  York,  66- 
X.  Y.  295;  Carr  v.  Xorthern  Liberties,  35  Pa.  St.  324;  Child  v.  City  of  Bos- 
ton, 4  Allen  (Mass.)  41;  Allen  v.  City  of  Boston,  159  Mass.  324,  34  N.  E.  519; 
Darling  v.  Bangor,  68  Me.  108;  City  of  Kansas  City  v.  Brady,  52  Kan.  297. 
34  Pac.  884;  Rozell  v.  City  of  Anderson,  91  Ind.  591;  Johnston  v.  District 
of  Columbia.  1  Mac-key  (D.  C.)  427;  City  of  Denver  v.  Capelli,  4  Colo.  25;. 
Hardy  v.  City  of  Brooklyn,  7  Abb.  (X.  C.)  403;  Collins  v.  City  of  Philadel- 
phia, 93  Pa.  St.  272;  Mayor,  etc.,  of  Americus  v.  Eldridge,  64  Ga.  524;  Spring- 
field v.  Spence,  39  Ohio  St.  665;  City  of  Aurora  v.  Love,  93  111.  521;  Ford  v. 
Town  of  Braintree,  64  Yt.  144,  33  Atl.  633;  Los  Angeles  Cemetery  Ass'n  v. 
City  of  Los  Angeles,  103  Cal.  461,  37  Pac.  375.  But  cf.  City  of  Evansville 
v.  Decker,  84  Ind.  325;  Aicher  v.  City  of  Denver,  10  Colo.  App.  413,  52  Pac. 
86;  Knostman  &  Peterson  Furniture  Co.  v.  City  of  Davenport.  99  Iowa,  589, 
68  N.  W.  887;  Bealafeid  v.  Borough  of  Verona,  188  Pa.  St.  627,  41  Atl.  651. 
Liability  for  failure  to  anticipate  excessive  rainfall,  Hession  v.  City  of  Wil- 
mington, 1  Marv.  122,  40  Atl.  749;  City  of  Peoria  v.  Adams,  72  111.  App.  662. 


430  NEGLIGENCE    OF    MUNICIPAL    CORPORATIONS.  (Ch.    11 

of  others.  If  it  uses  due  care  in  the  selection  of  its  officers,  it  has 
discharged  its  duty,  and  is  not  chargeable  for  their  negligent  acts 
or  omissions;6  the  adoption  of  the  plans  of  such  officers  being  a 
legislative  or  discretionary  function.  It  is  believed  that  this  prin- 
ciple is  not  supported  by  the  weight  of  authority  or  by  sound  rea- 
son. It  must  be  remembered  that,  coupled  with  the  powers  dele- 
gated to  municipalities,  there  exist,  in  many  instances,  duties  to 
achieve  certain  tangible  results.  Where  the  power  and  the  duty 
are  thus  combined,  the  exercise  of  the  function  ceases  to  be  legis- 
lative or  judicial,  and  becomes  essentially  ministerial  in  its  char- 
acter; and  a  failure  to  achieve  the  prescribed  result  may  entail  upon 
the  city  a  liability  for  consequent  injury.7  In  many  of  the  states, 
where  the  rule  exempting  the  city  from  liability  resulting  from  the 
adoption  of  defective  plans  is  considered  well  established,  the  deci- 
sions are  at  variance,  or  the  earlier  decisions  approving  the  rule 
have  been  modified  or  overruled.8  Judge  Dillon  thus  states  the  law 
on  this  point : 8  "*  *  *  The  later  cases  tend  strongly  to  estab- 
lish, and  may,  we  think,  be  said  to  establish,  and,  in  our  judgment, 
rightly  to  establish,  that  a  city  may  be  liable  on  the  ground  of  neg- 
ligence in  respect  of  public  sewers  solely  constructed  and  controlled 
by  it,  where,  by  reason  of  their  insufficient  size,  clearly  demon- 
strated by  experience,  they  result,  under  ordinary  conditions,  in 
overflowing  the  private  property  of  adjoining  or  connecting  owners 

«  Van  Pelt  v.  City  of  Davenport,  42  Iowa,  308. 

TBlyhl  v.  Village  of  Waterville,  57  Minn.  115,  58  N.  W.  817;  City  of 
Lansing  v.  Toolan,  37  Mich.  152;  Conlon  v.  City  of  St.  Paul,  70  Minn.  216, 
72  N.  W.  1073;  City  of  Chicago  v.  Seben,  165  111.  371,  46  N.  E.  244;  Oliver 
v.  City  of  Worcester,  102  Mass.  489;  Emery  v.  City  of  Lowell,  104  Mass.  13; 
Merrifield  v.  City  of  Worcester,  110  Mass.  216;  City  Council  of  Augusta  v. 
Lombard,  99  Ga.  282,  25  S.  E.  772;  Boyd  v.  Town  of  Derry  (N.  H.)  38  Atl. 
1005;  Seaman  v.  City  of  Marshall  (Mich.)  74  X.  W.  484;  Peck  v.  City 
of  Michigan  City,  149  Ind.  670,  49  N.  E.  800;  City  of  Litchfield  v.  South- 
worth,  67  111.  App.  398;  King  v.  City  of  Kansas  City,  58  Kan.  334,  48  Pac. 
.88;  Ostrauder  v.  City  of  Lansing,  111  Mich.  693,  70  N.  W.  332;  Donahoe  v. 
City  of  Kansas  City,  136  Mo.  657,  38  S.  W.  571. 

s  Cf.  Gould  v.  City  of  Topeka,  32  Kan.  485,  4  Pac.  822,  with  City  of  Kan- 
sas City  v.  Brady,  52  Kan.  297,  34  Pac.  884.  Cf.  Van  Pelt  v.  City  of  Daven- 
port, 42  Iowa,  308,  with  Knostman  &  Peterson  Furniture  Co.  v.  City  of  Dav- 
enport, 99  Iowa,  589,  68  N.  W.  8S7. 

»  2  Dill.  Mun.  Corp.  (,5th  Ed.)  p.  1328. 


§    178)  LIABILITY   FOR   INJURIES.  431 

with  sewage;  and  that  the  principle  of  exemption  from  liability 
for  defect  or  want  of  efficiency  of  plan  does  not,  as  more  fully  stated 
below,  extend  to  such  a  case."  And  it  is  believed  that  the  true 
rule  may  safely  be  made  even  stronger  than  this,  and  require  of  the 
municipality  the  exercise  of  reasonable  care  in  the  achievement  of 
a  result  of  this  character. 

Ministerial  Acts  Anticipating  Pecuniary  Profit. 

In  the  discharge  of  those  duties  and  powers  which  are  distinctly 
public,  appertaining  to  the  municipality  as  a  division  of  the  gen- 
eral government  of  the  state,  no  liability  attaches,10  but  municipali- 
ties are  not  exempt  from  the  liability  to  which  other  corporations 
are  subject  for  negligence  in  managing  or  dealing  with  property  or 
rights  held  by  them  for  their  own  advantage  or  emolument.11  This 
principle  is  commonly  illustrated  in  municipal  construction  and  con- 
trol of  water  works  12  and  gas  works.13  And  where  the  city  rented 
a  public  building,  and  a  person  was  injured  by  falling  into  an  exca- 
vation negligently  left  open  on  the  premises,  it  was  liable.14  So, 
also,  where  the  city  owned  and  operated  a  toll  bridge  over  the  Sa- 
vannah river,  it  was  responsible  for  injuries  received  through  its  de- 
fective condition.15  Under  the  foregoing  head  will  also  fall  that  nu- 
merous class  of  cases  involving  municipal  liability  where  the  pe- 
cuniary gain  reverting  to  the  corporation  is  indirect;  that  is,  where 
it  consists  in  avoiding  liability  and  expense,  and  in  economical  con- 
struction and  maintenance.  Even  in  the  absence  of  special  statute 
creating  liability,  it  is  now  generally  held  that  a  municipal  corpora- 

10  See  "Legislative  Duties,"  post,  pp.  448-451. 

11  Oliver  v.  City  of  Worcester,  102  Mass.  489;    Child  v.  City  of  Boston,  4 
Allen  (Mass.)  41;  Emery  v.  City  of  Lowell,  104  Mass.  13;   Merrifield  v.  City  of 
Worcester,  110  Mass.  216;    City  Council  of  Augusta  v.  Lombard,  99  Ga.  282, 
25  S.  E.  772;   Hill  v.  City  of  Boston,  122  Mass.  344;   Mayor,  etc.,  of  New  York 
v.  Bailey,  2  Denio  (N.  Y.)  433;   Collins  v.  Inhabitants  of  Greenfield,  172  Mass. 
78,  51  N.  E.  454. 

12  City   of  Philadelphia   v.   Gilmartiu,   71   Pa.    St.   140;    Smith   v.   City   of 
Philadelphia,  81  Pa.  St.  38. 

is  Scott  v.  Mayor,  etc.,  37  Eng.  Law  &  Eq.  495. 

i*  Oliver  v.  City  of  Worcester,  102  Mass.  489.  And  see  Neff  v.  Inhabitants 
of  Wellesley,  148  Mass.  487,  20  N.  E.  111. 

is  City  Council  of  Augusta  v.  Hudson,  88  Ga.  599,  15  S.  E.  678;  Doherty 
v.  Inhabitants  of  Braintree,  148  Mass.  495,  20  N.  E.  106. 


432  NEGLIGENCE    OF    MUNICIPAL    CORPORATIONS.  (Ch.    11 

tion  having  the  exclusive  control  of  the  streets,16  sidewalks,17 
bridges,  and  sewers  18  within  its  limits,  or,  at  least,  if  the  means 
for  performing  the  duty  are  placed  at  its  disposal,19  is  obliged  to 
construct  and  use  ordinary  diligence  to  keep  them  in  a  reasonably 
safe  condition; 20  and  if  it  unnecessarily  neglects  the  duty,  and  in- 
juries result  to  any  person  by  this  neglect,  the  corporation  is  liable 
for  the  damages  sustained.21  The  true  conception  of  the  basis  of 
this  responsibility  would  seem  to  lie  in  considering  duties  of  this 

le  Waggener  v.  Town  o!  Point  Pleasant,  42  W.  Va.  798,  26  S.  E.  352;  City 
of  Jacksonville  v.  Smith,  24  C.  C.  A.  97,  78  Fed.  292;  Town  of  Worthington 
v.  Morgan,  17  Ind.  App.  G03,  47  N.  E.  235;  City  of  Dallas  v.  McAllister  (Tex. 
Civ.  App.)  39  S.  W.  173. 

IT  Village  of  Sciota  v.  Norton,  63  111.  App.  530;  Hutcbings  v.  Inhabitants 
of  Sullivan,  90  Me.  131,  37  Atl.  883;  Town  of  Kentland  v.  Hagen  (Ind.  App.) 
46  N.  E.  43;  City  of  Ord  v.  Nash,  50  Neb.  335,  69  N.  W.  964.  Ice  on  sidewalks. 
City  of  Virginia  v.  Plummer,  65  111.  App.  419;  Huston  v.  City  of  Council 
Bluffs,  101  Iowa.  33,  69  N.  W.  1130;  Ellis  v.  City  of  Lewiston,  89  Me.  60, 
35  Atl.  1016;  Stapleton  v.  City  of  Newburgh,  9  App.  Div.  39,  41  N.  Y.  Supp. 
96;  Conklin  v.  City  of  Elmira,  11  App.  Div.  402,  42  N.  Y.  Supp.  518;  Town 
of  Boswell  v.  Wakley,  149  Ind.  64,  48  N.  E.  637;  Town  of  Williamsport  v. 
Lisk  (Ind.  App.)  52  N.  E.  628. 

is  City  of  Chicago  v.  Seben,  165  111.  371,  46  N.  E.  244;  Donahoe  v.  City  of 
Kansas  City,  136  Mo.  >S7,  38  S.  W.  571. 

i»  Shartle  v.  City  of  Minneapolis,  17  Minn.  308  (Gil.  284).  In  action  to 
recover  damage  caused  by  defective  sewer,  the  financial  inability  of  the  city 
to  repair  must  be  pleaded.  Netzer  v.  City  of  Crookston,  59  Minn.  244,  61 
N.  W.  21.  But  see  Hoyt  v.  City  of  Danbury,  69  Conn.  341,  37  Atl.  1051  (under 
statute);  Lord  v.  City  of  Mobile,  113  Ala.  360,  21  S.  E.  366. 

20  Byerly  v.   City  of  Anamosa,  79  Iowa,  204,   44  N.   W.  359;    Kellogg   v. 
Village  of  Janesville,  34  Minn.  132,  24  N.  W.  359;    Delger  v.  City  of  St.  Paul, 
14  Fed.  567;   Clarke  v.  City  of  Richmond,  83  Va.  355,  5  S.  E.  369;    Albrittin 
v.   Mayor,   etc.,   60  Ala.  486;    City  of  Denver  v.   Dunsmore,   7   Colo.   328,   3 
Pac.  705;    Grove  v.  City  of  Ft.  Wayne,  45  Ind.  429;    Saulsbury  v.  Village  of 
Ithaca,  94  N.  Y.  27;  Hiner  v.  City  of  Fond  dti  Lac,  71  Wis.  74,  36  N.  W.  632; 
Cleveland  v.  King,  132  LT.  S.  295,  10  Sup.  Ct.  90;   Browning  v.  City  of  Spring- 
field, 17  111.  143;    Goldschmid  v.  City  of  New  York,  14  App.  Div.  135,  43  X. 
Y.  Supp.  447;    City  of  South  Omaha  v.  Powell,  50  Neb.  798,  70  N.  W.  391; 
Scanlan  v.  City  of  Watertown,  14  App.  Div.  1,  43  N.  Y.  Supp.  618;    City  of 
Decatur  v.  Besten,  169  111.  340,  48  N.  E.  186;    Graham  v.  Town  of  Oxford, 
105  Iowa,  705,  75  N.  W.  473;    Hall  v.  City  of  Austin  (Minn.)  75  N.  W.  1121; 
City  of  Guthrie  v.  Swan,  5  Okl.  779,  51  Pac.  562. 

21  Shartle  v.  City  of  Minneapolis,  17  Minn.  308  (Gil.  284);    Mooney  v.  Bor- 
ough of  Luzerne,  186  Pa.  St.  161,  40  Atl.  311,  42  Wkly.  Notes  Cas.  279. 


§    1~S)  LIABILITY    FOR    INJURIES.  433 

class  to  be  ministerial  in  their  nature,  and  assumed  by  the  corpora- 
lion  in  consideration  of  the  privileges  conferred  by  its  charter.22 
But  negligence  in  the  manner  of  construction  and  maintenance  must 
not  be  confused  with  an  entire  neglect  or  omission  to  construct; 
for,  when  the  power  to  make  improvements  of  this  nature  is  dis- 
cretionary with  the  corporation,  the  failure  to  exercise  the  power 
cannot  be  made  the  basis  of  liability.23  Neither  can  an  action  of 
this  class  be  sustained  against  so-called  "quasi  municipal  corpora- 
tions,'' whose  liabilitv  is  considered  in  another  place.24 

r 

If  the  financial  inability  of  the  city  to  construct  and  keep  in  re- 
pair its  various  equipment  is  relied  upon  as  a  defense,  it  must  be 
pleaded.25  There  is  no  implied  warranty  as  to  the  safe  condition 
of  either  the  streets,  sidewalks,  bridges,  or  other  works  and  ways 
of  a  municipal  corporation;  nor  is  the  latter  liable  to  respond  in 
damages  for  every  injury  that  is  sustained  by  reason  of  defects  ex- 
isting therein.20  The  extent  of  the  requirement  is  that  the  city  use 
reasonable  care  to  secure  the  safety  of  persons  who  are  in  the  exer- 
cise of  ordinary  care  and  prudence.  Thus,  regarding  the  accumu- 
lations of  ice  and  snow  upon  sidewalks,  although  a  few  of  the  cases 
are  arbitrary  and  extreme,  the  consensus  of  the  decisions  does  not 
impose  liability  for  a  mere  slippery  condition,  occasioned  by  ice  or 
snow,27  but  the  accumulation  must  be  of  such  quantity  and  nature 
as  to  cause  a  virtual  obstruction  or  impediment.28 

22  Hill  v.  City  of  Boston,  122  Mass.  344;    Sawyer  v.  Corse,  17  Grat.  (Va.) 
230;    City  of  Richmond  v.  Long's  Adm'rs,  17  Grat.  (Va.)  375,  379. 

23  Wilson  v.  Mayor,  etc.,  1  Denio  (X.  Y.)  595;    Lacour  v.  Mayor,   etc.,  3- 
Duer  (X.  Y.)  406. 

24  See  post,  pp.  4;Ht— 157. 

25  Xetzer  v.  City  of  Crookston,  59  Minn.  244,  61  N.  W.  21.     And  see  Hoyt 
v.  City  of  Danbury,  69  Conn.  341,  37  Atl.  1051.    And  it  is  no  defense  that 
funds  are  lacking  through  failure  to  impose  the  legitimate  tax  for  that  pur- 
pose.    It  must  appear  that  it  has  exhausted  its  powers  to  raise  revenue.     Lord 
v.  City  of  Mobile,  113  Ala.  360,  21  South.  366. 

ze  Miller  v.  City  of  St.  Paul,  38  Minn.  134,  36  N.  W.  271. 

27  Xason  v.  City  of  Boston,  14  Allen  (Mass.)  508;  Cook  v.  City  of  Milwau- 
kee, 24  Wis.  270;  City  of  Chicago  v.  McGiven,  78  111.  347;  Stone  v.  Inhabit- 
ants of  Hubbardston,  100  Mass.  50;  Broburg  v.  City  of  Des  Moines.  63 
Iowa,  523,  19  X.  W.  340;  Kinney  v.  City  of  Troy,  108  X.  Y.  567,  15  X.  E. 
728;  Smyth  v.  City  of  Bangor,  72  Me.  249;  Henkes  v.  City  of  Minneapolis,  42 

zs  See  note  28  on  following  page. 
BAR.XEG.— 28 


434  NEGLIGENCE    OF    MUNICIPAL    CORPORATIONS.  (Ch.    11 

Contributory  negligence  of  the  injured  party  is,  of  course,  a  good 
defense,  and  although,  ordinarily,  a  person  who  deliberately  attempts 
to  pass  over  a  place  which  he  knows  to  be  dangerous  cannot  recover 
for  injuries  incurred  thereby,29  the  rule  is  not  absolute.  Thus,  one 
may  know  of  the  defective  condition  of  a  sidewalk,  and  yet  not  be 
guilty  of  negligence  in  attempting  to  pass  over  it,  provided  he  exer- 
cised care  commensurate  with  the  circumstances.30  The  weather 
records  of  the  United  States  signal  service  are  competent  evidence 

Minn.  530,  44  N.  W.  1026;  Seeley  v.  Town  of  Litchfleld,  49  Conn.  134;  Gros- 
senbach  v.  City  of  Milwaukee,  65  Wis.  31,  26  N.  W.  182;  Borough  of  Mauch 
Chunk  v.  Kline,  100  Pa.  St.  119;  Chase  v.  City  of  Cleveland,  44  Ohio  St.  505, 
9  N.  E.  225;  City  of  Chicago  v.  Richardson,  75  111.  App.  198;  Kleng  v.  City 
of  Buffalo,  156  N.  Y.  700,  51  N.  E.  1091;  Peard  v.  City  of  Mt.  Vernon,  158 
N.  Y.  681,  52  N.  E.  1125;  Hyer  v.  City  of  Janesville,  101  Wis.  371,  77  N. 
W.  729;  Newton  v.  City  of  Worcester,  169  Mass.  516,  48  N.  E.  274;  Wesley 
v.  City  of  Detroit  (Mich.)  76  N.  W.  104;  City  of  Lynchburg  v.  Wallace,  95 
Va.  640,  29  S.  E.  675. 

28  McLaughlin  v.  City  of  Corry,  77  Pa.  St.  109;  Savage  v.  City  of  Bangor, 
40  Me.  176;  Adams  v.  Town  of  Chicopee,  147  Mass.  440,  18  N.  E.  231;  Gill- 
rie  v.  City  of  Lockport,  122  N.  Y.  403,  25  N.  E.  357;  Huston  v.  City  of  Coun- 
cil Bluffs,  101  Iowa,  33,  69  N.  W.  1130;  Ellis  v.  City  of  Lewiston,  89  Me. 
60,  35  Atl.  1016;  Walsh  v.  City  of  Buffalo,  17  App.  Div.  112,  44  N.  Y.  Supp. 
942;  McGowan  v.  City  of  Boston,  170  Mass.  384,  49  N.  E.  633;  Waltemeyer 
v.  Kansas  City,  71  Mo.  App.  354;  Thompson  v.  Village  of  Saratoga  Springs, 
22  App.  Div.  186,  47  N.  Y.  Supp.  1032;  Miller  v.  City  of  Bradford,  186  Pa. 
St.  164,  40  Atl.  409;  Salzer  v.  City  of  Milwaukee,  97  Wis.  471,  73  N.  W.  20. 

2»  Hudon  v.  City  of  Little  Falls,  68  Minn.  463,  71  N.  W.  678;  Town  of 
Salem  v.  Walker,  16  Ind.  App.  687,  46  N.  E.  90;  Lane  v.  City  of  Lewiston, 
91  Me.  292,  39  Atl.  999;  Rogers  v.  City  of  Bloomington  (Ind.  App.)  52  N.  E. 
242;  Barce  v.  City  of  Shenandoah,  106  Iowa,  426,  76  N.  W.  747;  Boyle  v. 
Borough  of  Mahanoy  City,  187  Pa.  St.  1,  40  Atl.  1093,  42  Wkly.  Notes  Cas. 
423. 

so  Schwingschlegl  v.  City  of  Monroe,  113  Mich.  683,  72  N.  W.  7;  Culverson 
v.  City  of  Maryville,  67  Mo.  App.  343;  McPherson  v.  City  of  Buffalo,  13 
App.  Div.  502,  43  N.  Y.  Supp.  658;  Manross  v.  City  of  Oil  City,  178  Pa.  St. 
276,  35  Atl.  959;  City  of  Highlands  v.  Raine,  23  Colo.  295,  47  Pac.  283; 
Llchtenberger  v.  Incorporated  Town  of  Meriden,  100  Iowa,  221,  69  N.  W.  424; 
Pox  v.  City  of  Chelsea,  171  Mass.  297,  50  N.  E.  622;  Gutkind  v.  City  of  El- 
roy,  97  Wis.  649,  73  N.  W.  325;  Village  of  Coffeen  v.  Lang,  67  111.  App. 
359;  Village  of  Noble  v.  Hanna,  74  111.  App.  564;  Graham  v.  Town  of  Oxford, 
105  Iowa,  705,  75  N.  W.  473;  Chilton  v.  City  of  St.  Joseph,  143  Mo.  192.  44 
S.  W.  766;  City  of  Hillsboro  v.  Jackson  (Tex.  Civ.  App.)  44  S.  W.  1010;  Gif- 
fen  v.  City  of  Lewiston  (Idaho)  55  Pac.  545. 


§    178)  LIABILITY    FOR    INJURIES.  435 

on  the  question  of  the  amount  of  precipitation  of  rain  or  snow,31  . 
us  well  as  on  questions  of  temperature  and  mean  or  normal  condi- 
tions. A  city  is  under  no  obligation  to  light  its  streets  unless  its 
•charter  expressly  imposes  the  duty,  although  the  fact  as  to  whether 
it  is  lighted  or  not  may,  in  certain  cases,  have  a  material  bearing 
upon  the  question  of  negligence,  for  the  manifest  reason  that  a  street 
in  a  given  condition  may  be  reasonably  safe  if  lighted,  but  dangerous 
if  unlighted.32 

As  a  general  proposition,  the  duty  is  not  incumbent  upon  a  city 
to  place  fences,  rails,  or  barriers  on  the  margins  of  its  streets,33 
unless  special  circumstances  make  such  action  a  reasonable  precau- 
tion.34 

Improper  Occupation  and  Use  of  Streets. 

As  it  is  the  general  duty  of  the  city  to  keep  its  streets  and  side- 
walks in  a  reasonably  safe  condition,  it  follows  that  any  obstruc- 
tion, structure,  or  appurtenance  placed  or  allowed  to  remain  on  or 
near  them  by  permission  of  the  city,  actual  or  implied,  and  which 
renders  their  use  dangerous,  may  impose  liability  on  the  munici- 
pality, if  injury  results  therefrom.35  It  is  not  necessary  that  an 
obstruction  in  a  highway  should  endanger  any  particular  mode  of 

si  Evanston  v.  Gunn,  99  U.  S.  660. 

32  Randall  v.  Railroad  Co.,  106  Mass.  276;    Miller  v.  City  of  St.  Paul,  38 
Minn.  134,  36  N.  W.  271;    McHugh  v.  City  of  St.  Paul,  67  Minn.  441,  70  N. 
W.  5;    City  of  Chicago  v.  McDonald,  57  111.  App.  250;    City  of  Freeport  v. 
Isbell,  83  111.  440;   Oliver  v.  City  of  Denver  (Colo.  App.)  57  Pac.  729. 

33  Murphy  v.  Gloucester,  105  Mass.  470;    Puffer  v.  Orange,  122  Mass.  389; 
McHugh  v.  City  of  St.  Paul,  67  Minn.  441,  70  N.  W.  5;    O'Malley  v.  Borough 
of  Parsons  (Pa.  Sup.)  43  Atl.  384;    Crafter  v.  Railway  Co.,  L.  R.  1  C.  P.  300. 
But  as  to  passages  by  excavations,  etc.,  see  City  of  Chicago  v.  Gallagher, 
44  111.  295. 

34  Burnham  v.  City  of  Boston,  10  Allen  (Mass.)  290;    Blaisdell  v.  City  of 
Portland,  39  Me.  113;    Drury  v.  Inhabitants  of  Worcester,  21  Pick.   (Mass.) 
44;    City  of  Freeport  v.  Isbell,  83  111.  440;    Hey  v.  City  of  Philadelphia,  81 
Pa.  St.  44;    O'Leary  v.   City  of  Mankato,  21   Minn.  65;    City  of   Chicago  v. 
•Gallagher,  44  111.  295;   Ray  v.  City  of  Poplar  Bluff,  70  Mo.  App.  252. 

SB  Callanan  v.  Oilman,  107  N.  Y.  360,  14  N.  E.  264;  Yates  v.  Town  of  War- 
renton,  84  Va.  337,  4  S.  E.  818;  State  v.  Merritt,  35  Conn.  314;  Cohen  v. 
Mayor,  etc.,  113  N.  Y.  532,  21  N.  E.  700;  State  v.  Berdetta,  73  Ind.  185;  Com. 
v.  Blaisdell,  107  Mass.  234;  State  v.  Woodward,  23  Vt.  92;  City  of  Hender- 
son v.  Burke  (Ky.)  44  S.  W.  422. 


436  NEGLIGENCE    OF    MUNICIPAL    CORPORATIONS.  (Ch.   11 

public  travel  in  order  to  be  a  defect  subjecting  a  municipality  to- 
responsibility  to  one  injured  thereby.  It  is  sufficient  that  the  ob- 
struction makes  dangerous  any  mode  of  travel  which  the  public  has 
a  right  to  use.36  But  this  responsibility  does  not  attach  when  the 
user  is  an  improper  one.37  Thus,  liability  may  rest  on  the  city  for 
injuries  caused  by  signs,  awnings,  sheds,  or  cornices,38  and  it  is  no 
defense  that  the  obstruction  was  placed  there  by  a  third  person.39 
If,  however,  the  obstruction  has  been  authorized  by  act  of  the  legis- 
lature, it  cannot  constitute  a  nuisance.40 

A  similar  duty  is  imposed  upon  cities  in  regard  to  objects  which,, 
in  their  nature,  are  calculated  to  frighten  horses.  If  such  an  object 
is  allowed  to  remain  upon  or  near  the  street  after  its  presence  has 
become  known,  or,  in  the  exercise  of  reasonable  diligence,  should 
have  become  known,  to  the  authorities,  the  city  will  be  liable  for  in- 
juries resulting  from  fright  thereby  caused  to  horses  ordinarily  tract- 
able.41 In  the  various  cases  of  liability  before  mentioned  it  is  im- 
material that  the  street  where  the  injury  occurred  had  not  been 
legally  laid  out  or  dedicated.  If  the  city  has  treated  the  thorough- 

86  Powers  v.  City  of  Boston,  154  Mass.  60,  27  N.  E.  995.  Bicycles,  Wheeler 
v.  City  of  Boone  (Iowa)  78  N.  W.  909. 

37  Racing,  McCarthy  v.  Portland,  67  Me.  167;  Sindlinger  v.  City  of  Kansas 
City,  126  Mo.  315,  28  S.  W.  857;  playing,  Blodgett  v.  City  of  Boston,  8  Allen 
(Mass.)  237;  Jackson  v.  City  of  Greenville,  72  Miss.  220,  16  S.  W.  382. 

3 s  Drake  v.  City  of  Lowell,  13  Mete.  (Mass.)  292  (awning);  Grove  v.  City 
of  Ft.  Wayne,  45  Ind.  429  (cornice);  Wells  v.  City  of  Brooklyn,  9  App.  Div. 
61,  41  N.  Y.  Supp.  143  (show  case);  Chase  v.  City  of  Lowell,  151  Mass.  422, 
24  N.  E.  212;  Bieling  v.  City  of  Brooklyn,  120  N.  Y.  98,  24  N.  E.  389;  Bohen 
v.  City  of  Waseca,  32  Minn.  176,  19  N.  W.  730  (awning);  Jones  v.  City  of 
New  Haven,  34  Conn.  1  (dead  lirnb  of  tree). 

so  Caton  v.  City  of  Sedalia,  62  Mo.  App.  227. 

«o  Gushing  v.  City  of  Boston,  128  Mass.  330;  Com.  v.  Capp,  48  Pa.  St.  53  r 
City  of  North  Vernon  v.  Voegler,  103  Ind.  327,  2  N.  E.  821. 

4i  McKee  v.  Bidwell,  74  Pa.  St.  218;  City  of  Chicago  v.  Hoy,  75  111.  530- 
(dead  animal);  Gushing  v.  Bedford,  125  Mass.  526  (red  drinking  trough); 
Smith  v.  Inhabitants  of  Wendell,  7  Cush.  (Mass.)  498  (stones);  Ouverson  v. 
City  of  Graf  ton,  5  N.  D.  281,  65  N.  W.  676  (a  threshing  machine);  City  of 
Mt.  Vernon  v.  Hoehn  (Ind.  App.)  53  N.  E.  654  (mowing  machine  in  street). 
But  cf.  Sparr  v.  City  of  St.  Louis,  4  Mo.  App.  573,  where  plaintiff  was  not  al- 
lowed to  recover  for  injuries  caused  by  his  horse  taking  fright  at  a  steam 
street-mending  machine.  Lane  v.  City  of  Lewiston,  91  Me.  292,  39  Atl.  999. 


§    178)  LIABILITY    FOR   INJURIES.  437 

fare  as  a  public  street,  the  duty  to  keep  it  in  reasonably  safe  condi- 
tion is  imposed.42 

Giving  Notice  of  Injury. 

The  provision,  either  by  statute  or  charter,  is  now  very  general 
throughout  the  United  States  that,  prior  to  the  commencement  of 
an  action  against  the  city  to  recover  for  personal  injuries,  a  formal 
notice,  of  varying  requirements,  shall  be  served  upon  the  city.  Such 
provisions  are  constitutional,  and  compliance  with  their  provisions 
is  a  condition  precedent  to  the  right  of  action.43  Nor  can  the  mu- 
nicipality waive  this  compliance.44  But  a  substantial  compliance 
with  the  requirements  of  the  provision  is  sufficient.45  Jt  would 
seem  that  such  compliance — the  giving  of  the  notice — should  be 
pleaded,46  although  in  some  states  the  failure  to  do  so  does  not  ren- 
der the  complaint  demurrable.47 

It  must  be  borne  in  mind,  as  modifying  and  applying  to  all  that 
has  been  said  respecting  the  duties  of  municipalities  regarding  the 
construction  and  care  of  their  streets  and  sidewalks,  that  the  city 

42  Phelps   v.    City   of   Mankato,    23   Minn.    277;     Manderschid    v.    City    of 
Dubuque,  25  Iowa,  108;   Todd  v.  City  of  Troy,  61  X.  Y.  506;    Coates  v.  Town 
of  Canaan,  51  Vt.  131;   Johnson  v.  City  of  Milwaukee,  46  Wis.  568,  1  N.  W. 
187;   Steel  v.  Borough  of  Huntingdon  (Pa.  Sup.)  43  Atl.  398. 

43  Kellogg  v.  City  of  New  York,  15  App.  Div.  326,  44  N.  Y.  Supp.  39;    City 
of  Ft.  Worth  v.  Shero  (Tex.  Civ.  App.)  41  S.  W.  704. 

*4  Starling  v.  Incorporated  Town  of  Bedford,  94  Iowa,  194,  62  N.  W.  674. 

45  Stedman  v.  City  of  Rome,  88  Hun,  279,  34  N.  Y.  Supp.  737;    Coffin  v. 
Inhabitants  of  Palmer,  162  Mass.  192,  38  N.  E.  509;   Hughes  v.  City  of  Law- 
rence, 160  Mass.  474,  36  N.  E.  485.     Cf.  last  case  with  Gardner  v.  City  of 
New  London,  63  Conn.  267,  28  Atl.  42;    Laue  v.   City  of  Madison,  86  Wis. 
453,  57  N.  W.  93;    Carstesen  v.   Town  of   Stratford,  67   Conn.  428,  35  Atl. 
276;    Hutchings  v.  Inhabitants  of  Sullivan,  90  Me.  131,  37  Atl.  883.     Insuffi- 
cient notice,  see  Driscoll  v.  City  of  Fall  River,  163  Mass.  105,  39  N.  E.  1003; 
Dolan  v.  City  of  Milwaukee,  89  Wis.  497,  61  N.  W.  564;    Van  Loan  v.  Village 
of  Lake  Mills,  88  Wis.  430,  60  N.  W.  710;    Kennedy  v.  City  of  New  York, 
18  Misc.  Rep.  303,  41  N.  Y.  Supp.  1077;    Kelley  v.  City  of  Minneapolis  (Minn.) 
79  X.  W.  653;    Lyons  v.  City  of  Red  Wing  (Minn.)  78  X.  W.  868.     Failure  to 
give  notice  excused.     Barclay  v.  City  of  Boston,  167  Mass.  596,  46  X.  E.  113; 
but  see  Saunders  v.  City  of  Boston,  167  Mass.  595,  46  X.  E.  98. 

46  Pardey  v.  Incorporated  Town  of  Mechanicsville,   101   Iowa,   266,   70  N. 
W.  189. 

47  Frisby  v.  Town  of  Marshall.  119  X.  C.  570,  26  S.  E.  251;    Hawley  v.  City 
of  Johnstown,  40  App.  Div.  5GS,  58  X.  Y.  Supp.  49. 


438  NEGLIGENCE    OF   MUIs7ICIPAL    CORPORATIONS.  (Ch.    11 

is  liable  only  for  negligence,  and  is  held  only  to  the  exercise  of 
reasonable  care  in  their  construction  and  maintenance,  and  to  rea- 
sonable diligence  in  the  discovery  and  remedy  of  defects.48 

ALTERATION  OF  GRADES. 

179.  In  the  absence  of  any  express  legislative  provision, 
a  municipality  is  not  liable  for  injuries  to  abutting 
property,  resulting  from  change  of  grade,  repairs, 
or  improvement  of  streets,  provided  that  the  city 
uses  reasonable  care  and  skill  in  the  performance  of 
the  work,  and  that  it  is  authorized  by  statute.1 

In  Keining  v.  New  York,  L.  &  W.  Ry.  Co.,2  Andrews,  J.,  says: 
''The  cases  of  change  of  grade  furnish  apposite  illustrations.  They 
proceed  on  the  ground  that  individual  interests  in  streets  are  subor- 
dinate to  public  interests,  and  that  a  lot  owner,  although  he  may 
have  built  upon  and  improved  his  property  with  a  view  to  the  exist- 
ing and  established  grade  of  the  street,  and  relying  upon  its  con- 
tinuance, has  no  legal  redress  for  any  injury  to  his  property,  how- 
ever serious,  caused  by  a  change  of  grade,  provided  only  that  the 
change  is  made  under  lawful  authority.  This,  it  is  held,  is  not  a 
taking  of  the  abutting  owner's  property,  and  the  injury  requires 

48  Rapho  Tp.  v.  Moore,  G8  Pa.  St.  404;  Todd  v.  City  of  Troy,  61  N.  Y. 
506;  Hume  v.  City  of  New  York,  47  N.  Y.  639;  Dewey  v.  City  of  Detroit, 
15  Mich.  307;  Doulon  v.  City  of  Clinton,  33  Iowa,  397;  Mayor,  etc.,  of  New 
York  v.  Sheffield,  4  Wall.  189;  City  of  Centralia  v.  Krouse,  64  111.  19. 

§  179.  i  Callender  v.  Marsh,  1  Pick.  (Mass.)  "418;  Fellowes  v.  City  of  New 
Haven,  44  Conn.  240;  Brown  v.  City  of  Lowell,  8  Mete.  (Mass.)  172;  City  of 
Reading  v.  Keppleman,  61  Pa.  St.  233;  City  of  Lafayette  v.  Spencer,  14 
Ind.  399;  .Radcliff's  Ex'rs  v.  Brooklyn,  4  N.  Y.  195;  St.  Peter  v.  Denison, 
58  N.  Y.  416;  Talbot  v.  Railroad  Co.,  151  N.  Y.  155,  45  N.  E.  382;  City  of 
Quincy  v.  .Tones,  7G  111.  231;  Wakefleld  v.  Newell,  12  R.  I.  75;  Mitchell  v. 
City  of  Rome,  49  Ga.  29;  Hovey  v.  Mayo,  43  Me.  322;  Alden  v.  City  of 
Minneapolis.  24  Minn.  254;  Skinner  v.  Bridge  Co.,  29  Conn.  523;  In  re 
Ehrsam,  37  App.  Div.  272,  55  N.  Y.  Supp.  942;  McCray  v.  Town  of  Fairmont 
(W.  Va.)  33  S.  E.  245.  Per  contra,  City  of  Cincinnati  v.  Penny,  21  Ohio  St. 
499.  And  the  doctrine  has  been  qualified  in  Kentucky.  City  of  Louisville 
v.  Mill  Co.,  3  Bush  (Ky.)  416;  Kemper  v.  City  of  Louisville,  14  Bush  (Ky.) 
87;  City  of  Louisville  v.  Hegan  (Ky.)  49  S.  W.  532. 

2  128  N.  Y.  157,  at  page  165,  28  N.  E.  642. 


§    179)  ALTERATION    OF   GRADES.  439 

no  compensation."  A  more  simple  explanation  of  the  foundation 
of  this  doctrine  is  thus  given  by  Parker,  C.  J.,  in  Callender  v.  Marsh: 3 
"Those  who  purchase  house  lots  bordering  upon  streets  are  supposed 
to  calculate  the  chance  of  such  elevations  and  reductions  as  the  in- 
creasing population  of  a  city  may  require  in  order  to  render  the 
passage  to  and  from  the  several  parts  of  it  safe  and  convenient; 
and,  as  their  purchase  is  always  voluntary,  they  may  indemnify 
themselves  in  the  price  of  the  lot  which  they  buy,  or  take  the  chance 
of  future  improvements,  as  they  see  fit.  *  *  *  Every  one  who 
purchases  a  lot  upon  the  summit  or  on  the  decline  of  a  hiU  is  pre- 
sumed to  foresee  the  changes  which  public  necessity  or  convenience 
may  require,  and  may  avoid  or  provide  against  a  loss.  Neither 
does  the  property  right  of  the  adjacent  owner  give  him  any  right 
of  lateral  support  in  the  material  of  the  street,  even  by  prescrip- 
tion.4 The  suitableness  of  the  adopted  grade  is  immaterial,  and 
will  not  be  inquired  into  by  the  court.15  When  the  charter  of  the 
city  provides  for  assessment  of  damage  and  condemnation  before 
the  proposed  change  is  undertaken,  this  constitutes  a  condition 
precedent,  and  must  be  observed.8 

Pablic  Buildings. 

The  principles  governing  the  liability  of  cities  for  injuries  occur- 
ring by  reason  of  defects  in  the  construction  and  operation  of  pub- 
lic buildings  are  in  no  way  different  from  those  which  determine  the 
corporate  liability  in  the  performance  of  other  public  functions, 
the  proposition  being  that  no  private  action,  unless  authorized  by 
express  statute,  can  be  maintained  against  a  city  for  the  neglect  of 
a  public  duty  imposed  upon  it  by  law  for  the  benefit  of  the  public, 
and  from  the  performance  of  which  the  corporation  receives  no 

s  1  Pick.  (Mass.)  418,  at  page  431. 

4  City  of  Quincy  v.  Jones,  76  111.  231.  In  Transportation  Co.  v.  City  of 
Chicago,  £9  U.  S.  635,  the  court  points  out  that  this  doctrine  in  no  way  de- 
parts from  the  common  law  as  to  the  right  of  lateral  support,  viz.  that  the 
right  of  lateral  support  extends  only  to  the  soil  in  its  natural  condition,  and 
does  not  protect  whatever  is  placed  upon  the  soil,  increasing  the  downward 
and  lateral  pressure. 

s  Snyder  v.  President,  etc.,  of  Rockport,  6  Ind.  237;  Roberts  v.  City  of 
Chicago,  26  111.  249. 

e  Hurford  v.  City  of  Omaha.  4  Neb.  336;  Garraux  v.  City  Council  of  Green- 
ville, 53  S.  C.  575,  31  S.  E.  597. 


440  NEGLIGENCE    OF    MUNICIPAL    CORPORATIONS.  (Ch.    11 

profit  or  advantage.  In  Hill  v.  City  of  Boston  7  it  was  held  that  a 
child  attending  the  public  school,  in  a  school  house  provided  by 
the  city,  could  not  recover  for  injuries  sustained  by  reason  of  the 
unsafe  condition  of  a  staircase  therein.  Gray,  C.  J.,  delivering  the 
opinion  of  the  court,  concludes  as  follows:  "But,  however  it  may 
be  where  the  duty  in  question  is  imposed  by  the  charter  itself,  the 
examination  of  the  authorities  confirms  us  in  the  conclusion  that 
a  duty  which  is  imposed  upon  an  incorporated  city,  not  by  the  terms 
of  its  charter,  nor  for  the  profit  of  the  corporation,  pecuniarily  or 
otherwise,  but  upon  the  city  as  the  representative  and  agent  of  the 
public,  and  for  the  public  benefit,  and  by  a  general  law  applicable 
to  all  cities  and  towns  in  the  commonwealth,  and  a  breach  of  which 
in  the  case  of  a  town  would  give  no  right  of  private  action,  is  a 
duty  owing  to  the  public  alone;  and  a  breach  thereof  by  a  city,  as 
by  a  town,  is  to  be  redressed  by  prosecution  in  behalf  of  the  public, 
and  will  not  support  an  action  by  an  individual,  even  if  he  sustained 
special  damage  thereby." 

ACTS  OF  OFFICERS  OR  AGENTS. 

180.  A  municipality  is  liable  for  the  conduct  of  its  corpo- 
rate agents  or  officers,  acting  -within  their  author- 
ity, when  the  act  complained  of  is  one  of  misfea- 
sance, or  consists  in  neglect  of  an  absolute  corporate 
duty. 

The  affairs  of  municipal  corporations  must  necessarily  be  con- 
ducted through  the  intervention  of  agents  who  are  more  or  less 
representative  of  the  corporate  government,  according  to  the  nature 
of  the  duty  they  are  required  to  perform.  To  render  the  munici- 

^  122  Mass.  344.  See,  also,  Bigelow  v.  Inhabitants  of  Randolph,  14  Gray 
(Mass.)  541;  Howard  v.  City  of  Worcester,  153  Mass.  426,  27  N.  E.  11;  Snider 
v.  City  of  St.  Paul,  51  Minn.  466,  53  N.  W.  763;  Schauf's  Adm'r  v.  City  of 
Paducah  (Ky.)  50  S.  W.  42,  City  hall,  Gullikson  v.  McDonald,  62  Minn.  278, 
64  N.  W.  812.  City  parks  and  squares,  Sheehan  v.  City  of  Boston,  171  Mass. 
29G,  50  N.  E.  543.  In  the  following  cases,  arising  out  of  injuries  suffered  in 
the  use  of  public  buildings,  recovery  was  allowed,  the  duty  involved  not  being 
a  purely  public  one:  Ban-on  v.  City  of  Detroit,  94  Mich.  601,  54  N.  W.  273; 
Briegel  v.  City  of  Philadelphia,  135  Pa.  St.  451,  19  Atl.  1038;  Ivies  v.  City  of 
Erie,  169  Pa.  St.  598,  32  Atl.  621. 


•§    180)  ACTS    OF    OFFICERS    OR    AGENTS.  441 

pality  liable  for  the  act  of  its  agent,  it  is  essential,  in  the  first  in- 
stance, that  the  latter  should  be  an  officer  of  the  corporation,  duly 
-authorized  to  perform  the  duty  whose  breach  caused  the  injury; 
and  the  breach  must  occur  in  the  performance  of  a  corporate  duty, 
or  a  power  constitutionally  conferred.  Thus,  if  the  act  complained 
of  be  ultra  vires,  no  action  will  lie  against  the  city,  for  municipal 
corporations  can  be  held  liable  for  such  tortious  conduct  only  as 
occurs  in  the  exercise  of  some  power  or  duty  conferred  or  imposed 
by  law.1  And  not  only  must  the  act  be  within  the  power  conferred 
on  the  municipality,  and  duly  authorized  or  ratified  by  it,  but  it 
must  be  done  in  good  faith,  in  pursuance  of  the  general  authority 
with  which  the  officer  is  clothed  to  act  for  the  city.2  Thus,  a  city 
is  not  liable  for  the  act  of  a  tax  collector  in  bringing  a  malicious 
suit  against  a  person,  unless  it  has  authorized  or  ratified  such  suit.3 

§  ISO.  i  Loyd  v.  City  of  Columbus,  90  Ga.  20,  15  S.  E.  818;  City  of  Orlando 
v.  Pragg,  31  Fla.  Ill,  12  South.  308;  City  of  Albany  v.  Cunliff,  2  N.  Y.  165, 
reversing  2  Barb.  (N.  Y.)  190;  Browning  v.  Board,  44  Ind.  11;  Haag  v.  Board, 
•60  Ind.  511;  City  of  Pekin  v.  Newell,  26  111.  320;  Stoddard  v.  Village  of  Sara- 
toga Springs,  127  X.  Y.  201,  27  N.  E.  1030;  Smith  v.  City  of  Rochester,  76  N. 
Y.  50G;  Morrison  v.  City  of  Lawrence,  98  Mass.  219;  Schumacher  v.  City  of 
St.  Louis,  3  Mo.  App.  297;  City  of  New  Orleans  v.  Kerr,  50  La.  Ann.  413, 
23  South.  384;  Reynolds  v.  Board,  33  App.  Div.  88,  53  N.  Y.  Supp.  75;  Smith 
v.  Major,  16  Ohio  Cir.  Ct.  R.  3(52,  8  Ohio  Dec.  649. 

2  Noble  Tp.  v.  Aasen  (N.  D.)  76  N.  W.  990;  Reynolds  v.  Board,  33  App. 
Div.  88,  53  N.  Y.  Supp.  75;  Davidson  v.  City  of  New  York,  24  Misc.  Rep.  560, 
54  N.  Y.  Supp.  51.  Thus,  a  town  is  not  liable  for  the  unauthorized  acts  of  its 
officers,  although  done  colore  officii.  In  an  action  against  a  town  for  dam- 
ages caused  by  the  acts  of  its  officers,  the  complaint  must  allege  that  such 
acts  were  within  the  scope  of  their  authority.  Kreger  v.  Bismarck  Tp., 
•59  Minn.  3,  60  N.  W.  675. 

s  Horton  v.  Newell,  17  R.  I.  571,  23  Atl.  910;  Donnelly  v.  Tripp.  12  R. 
I.  97;  New  York  &  Brooklyn  Sawmill  &  Lumber  Co.  v.  City  of  Brooklyn. 
71  N.  Y.  580;  Ham  v.  Mayor,  etc.,  70  N.  Y.  459;  Goddard  v.  Inhabitants 
of  Harpswell,  84  Me.  499,  24  Atl.  958;  Fisher  v.  City  of  Boston,  104  Mass. 
87;  Alcorn  v.  City  of  Philadelphia,  44  Pa.  St.  348;  Reilly  v.  City  of  Philadel- 
phia, 60  Pa.  St.  467;  Sewall  v.  City  of  St.  Paul,  20  Minn.  511  (Gil.  459);  City 
•of  Chicago  v.  Joney,  60  111.  383;  City  of  Kansas  City  v.  Brady.  52  Kan.  297, 
34  Pac.  884.  Liability  for  wrongful  acts  authorized  by  municipality.  Commer- 
•cial  Electric  Light  &  Power  Co.  v.  City  of  Tacoma  (Wash.)  55  Pac.  219:  Holl- 
man  v.  City  of  Platteville,  101  Wis.  94,  76  N.  W.  1119;  City  of  Oklahoma 
•City  v.  Hill,  6  Okl.  114,  50  Pac.  242. 


NEGLIGENCE    OF    MUNICIPAL    CORPORATIONS.  (Cll.    11 

Nor  are  police  officers  of  a  city  its  agents  in  such  a  sense  as  to  ren- 
der it  liable  for  their  wrongful  acts.4 

No  liability  attaches  to  the  corporation  for  the  acts  of  its  officers 
or  agents  performed  under  direct  authority  conferred  by  a  valid  act 
of  the  legislature.5  But,  though  the  legislature  has  authorized  the 
execution  of  the  work,  it  does  not  thereby  exempt  those  authorized 
to  perform  it  from  the  obligation  to  use  reasonable  care  that  no  un- 
necessary damage  shall  be  done  in  the  execution.6 

In  determining  whether  the  officer  whose  conduct  is  complained 
of  is  a  servant  or  agent  of  the  corporation,  or  a  public  or  state  offi- 
cer, regard  must  be  had  to  the  character  of  the  duty  with  the  per- 
formance of  which  he  is  charged.  To  constitute  an  officer  a  cor- 
porate agent,  so  that  the  maxim  respondeat  superior  may  apply  to- 
his  acts,  it  is  not  sufficient  that  he  holds  his  position  through  the 
act  of  the  corporation,  or  is  retained  and  controlled  at  its  pleasure;, 
it  is  still  further  essential  to  the  relation  that  the  duties  with 
which  he  is  officially  charged  should  relate  peculiarly  and  solely  to 
the  interest  and  benefit  of  the  municipality  in  its  segregated  char- 
acter. Unless  these  tests  apply,  the  town  or  city  is  exonerated 
from  liability  for  his  acts  on  the  ground  that  the  wrongful  act  com- 
plained of  is  not  its  act,  but  that  of  a  person  who  is  deemed  to  be 
a  public  officer,  existing  under  independent  provision  of  law;  as  an 
officer  who,  though  appointed  and  paid  by  the  city  or  town,  and 
though,  perhaps,  its  agent  or  servant  for  other  purposes,  is  yet  held 
not  to  sustain  this  relation  in  respect  to  the  particular  act  in  ques- 
tion.7 Thus,  a  municipal  board  of  police  is  distinctly  an  agency  of 

*  Woodhull  v.  City  of  New  York,  76  Him,  390,  28  N.  Y.  Supp.  120;  Coley 
v.  City  of  Statesville,  121  N.  C.  301,  28  S.  E.  482;  Stinnett  v.  City  of  Sher- 
man (Tex.  Civ.  App.)  43  S.  W.  847;  Craig  v.  City  of  Charleston,  78  111.  App. 
312. 

5  Callender  v.   Marsh,   1   Pick.   (Mass.)   418;    Bellinger  v.   Railroad   Co.,  23- 
N.   Y.  42;    Sprague  v.   City  of  Worcester,  13  Gray   (Mass.)   193;    Pontiac  v. 
Carter,  32  Mich.  164;    Snyder  v.  Town  of  Rockport,  6  Ind.  237;    Bartlett  v. 
Town  of  Clarksburg  (W.  Va.)  31  S.  E.  918;    Doty  v.  Village  of  Port  Jervis, 
23  Misc.  Rep.  313,  52  N.  Y.  Supp.  57. 

6  Mersey  Docks  &  Harbour  Board  v.  Gibbs,  L.  R.  1  H.  I,.  93,  11  H.  L.  Gas. 
686. 

T  City  of  Chicago  v.  McGraw,  75  111.  566;  Backer  v.  Commissioners,  66  111. 
App.  507;  Kelly  v.  Cook  (R.  I.)  41  Atl.  571. 


§    180)  ACTS    OF    OFFICERS    OR    AGENTS.  44S 

the  state  government,  and  not  of  the  municipality,8  and  the  chief 
of  a  city  police  force  is  the  officer  of  the  state,  and  not  of  the  mu- 
nicipality where  he  is  employed.9 

It  was  held  that  no  liability  attached  to  a  municipal  corporation 
for  negligence  or  misconduct  of  its  officers  in  the  following  cases: 
Members  of  the  fire  department,10  board  of  health,11  pound  keeper,12 
city  engineer,13  board  of  public  works,14  superintendent  of  streets,1* 
board  of  water  commissioners,16  road  commissioners,17  highway  sur- 

s  People  v.  Mahaney,  13  Mich.  481;  People  v.  Hurlbut,  24  Mich.  44;  Com. 
v.  Plaisted,  148  Mass.  375,  19  X.  E.  224;  People  v.  McDonald,  69  N.  Y.  362; 
City  of  Chicago  v.  Wright,  69  111.  318;  State  v.  Covington,  29  Ohio  St.  102; 
Elliott  v.  City  of  Philadelphia,  75  Pa.  St.  347;  Calwell  v.  City  of  Boone,  51 
Iowa,  687,  2  N.  W.  614;  Bowditch  v.  City  of  Boston,  101  TJ.  S.  16;  Jolly's 
Adm'x  v.  City  of  Hawesville,  89  Ky.  279,  12  S.  W.  313;  WoodhuU  v.  City  of 
New  York,  150  X.  Y.  450,  44  X.  E.  1038;  Gullikson  v.  McDonald,  62  Minn. 
278.  64  N.  W.  812. 

» Burch  v.  Hardwicke,  30  Grat.  (Va.)  24.  Xor  is  a  city  liable  for  the 
act  of  police  officer  in  killing  a  dog  running  at  large  contrary  to  ordinance. 
Moss  v.  City  Council  of  Augusta,  93  Ga.  797,  20  S.  E.  653;  Van  Hoosear 
v.  Town  of  Wilton,  62  Conn.  106,  25  Atl.  457. 

10  Hafford  v.  City  of  New  Bedford.  16  Gray  (Mass.)  297;    Fisher  v.  City  of 
Boston.  104  Mass.  87;    Lawson  v.  City  of  Seattle,  6  Wash.  184,  33  Pac.  347; 
Wild  v.  City  of  Paterson,  47  N.  J.  Law,  406,  1  Atl.  490;    Alexander  v.  City 
of  Vicksburg,  68  Miss.  564,   10   South.   62;     Gillespie  v.    City  of  Lincoln,   35 
Neb.  34,  52  X.  W.  811;    Dodge  v.  Granger,  17  R.  I.  664,  24  Atl.  100;    Fred- 
erick v.  City  of  Columbus,  58  Ohio  St.  538,  51  X.  E.  35. 

11  Forbes  v.  Board,  28  Fla.  26,   9  South.  862;    Bates  v.   City  of  Houston, 
14  Tex.  Civ.  App.  287,  37  S.  W.  383;    Love  v.  City  of  Atlanta,  95  Ga.  129, 
22  S.  E.  29;   Clayton  v.  City  of  Henderson  (Ky.)  44  S.  W.  667;   Webb  v.  Board 
(Mich.)  74  X.  W.  734. 

12  Rounds  v.  City  of  Bangor,  46  Me.  541.     And  see  Summers  v.  Daviess  Co., 
103  Ind.  262,  2  X.  E.  725. 

is  Sievers  v.  City  &  County  of  San  Francisco.  115  Cal.  648.  47  Pac.  687. 

i*  Kuehn  v.  City  of  Milwaukee,  92  Wis.  263,  65  X.  W.  1030;  Xorton  v. 
City  of  Xew  Bedford,  166  Mass.  48,  43  X.  E.  1034. 

is  Jensen  v.  City  of  Waltham,  166  Mass.  344,  44  X.  E.  339;  McCann  v. 
City  of  Waltham,  163  Mass.  344,  40  X.  E.  20;  Barney  v.  City  of  Lowell,  98 
Mass.  570. 

is  Gross  v.  City  of  Portsmouth  (X.  H.)  33  Atl.  256.  But  see  Bailey  v. 
Mayor,  etc.,  3  Hill  (X.  Y.)  531;  Miller  v.  City  of  Minneapolis  (Minn.)  77  X.  W. 
788. 

IT  Bryant  v.  Inhabitants  of  Westbrook,  86  Me.  450,  29  Atl.  1109;   nor  bridge 


444  NEGLIGENCE    OF   MUNICIPAL    CORPORATIONS.  (Ch.   11 

veyors,18  police  officers,19  overseers  of  the  poor,20  assessors  and  col- 
lectors,21 selectmen,22  board  of  aldermen,23  and  the  city  government 
itself.24  And  it  is,  of  course,  immaterial  whether  the  person  com- 
mitting the  act  was  or  was  not  a  corporate  agent,  if  the  act  itself 
was  unauthorized.25 

ACTS  ULTRA  VIRES. 

181.  Municipal  corporations  can  be  held  liable  for  such  tor- 
tious  conduct  only  as  occurs  in  the  exercise  of  some 
power  or  duty  conferred  or  imposed  by  law.  If 
the  conduct  be  unauthorized  by  either  charter  or 
statute,  it  cannot  be  the  basis  of  a  suit  for  damages 
against  the  city.1 

Thus,  cutting  a  ditch  outside  of  the  city  limits  is  an  act  ultra 
vires,  for  which  the  city  is  not  liable  to  the  owner  of  the  premises 
damaged.2  Neither  can  a  municipality  commit  libel.3  Nor  can  the 

tenders,  Daly  v.  City  &  Town  of  New  Haven,  69  Conn.  644,  38  Atl.  397.  But 
see  Inman  v.  Tripp,  11  R.  I.  520. 

is  Walcott  v.  Inhabitants  of  Swampscott,  1  Allen  (Mass.)  101. 

i»  Buttrick  v.  City  of  Lowell,  1  Allen  (Mass.)  172. 

*o  City  of  New  Bedford  v.  Inhabitants  of  Taunton,  9  Allen  (Mass.)  207. 

«i  Rossire  v.  City  of  Boston,  4  Allen  (Mass.)  57. 

22  Cushing  v.  Inhabitants  of  Bedford,  125  Mass.  526. 

*»  Child  v.  City  of  Boston,  4  Allen  (Mass.)  41. 

2*  Griggs  v.  Foote,  4  Allen  (Mass.)  195. 

25  Easterly  v.  Incorporated  Town  of  Irwin,  99  Iowa,  694,  68  N.  W.  919; 
City  of  Caldwell  v.  Prunelle,  57  Kan.  511,  46  Pac.  949;  Fox  v.  City  of  Rich- 
mond (Ky.)  40  S.  W.  251;  Gray  v.  City  of  Detroit,  112  Mich.  657,  71  N.  W. 
1107;  Royce  v.  City  of  Salt  Lake  City,  15  Utah,  401,  49  Pac.  290. 

§  181.  i  Stetson  v.  Kempton,  13  Mass.  272;  Inhabitants  of  Norton  v.  In- 
habitants of  Mansfield,  16  Mass.  48;  Cavanagh  v.  City  of  Boston.  139  Mass. 
426,  1  N.  E.  834;  Mayor,  etc.,  of  City  of  Albany  v.  Cunliff,  2  N.  Y.  105;  Bar- 
bour  v.  City  of  Ellsworth,  67  Me.  294;  Smith  v.  City  of  Rochester.  76  N.  Y. 
506;  City  of  Peru  v.  Gleason,  91  Ind.  566;  Donnelly  v.  Tripp,  12  R.  I.  97; 
City  of  Chicago  v.  Turner,  80  111.  419;  Cheeney  v.  Town  of  Brookfield,  60  Mo. 
53;  Boze  v.  City  of  Albert  Lea  (Minn.)  76  N.  W.  1131;  Hoggard  v.  City  of 
Monroe  (La.)  25  South.  349;  Brunswick  Gaslight  Co.  v.  Brunswick  Village 
Corp.,  92  Me.  493,  43  Atl.  104. 

2  Loyd  v.  City  of  Columbus,  90  Ga.  20,  15  S.  E.  818;    City  of  Orlando  v. 


«  Rowland  v.  Inhabitants  of  Maynard,  159  Mass.  434,  34  N.  E.  515. 


§    181)  ACTS    ULTRA    VIRES.  445 

wrongful  act  of  a  municipality  be  characterized  as  gross  and  will- 
ful, so  as  to  render  it  liable  for  vindictive  damages;  compensatory 
damages  alone  can  be  recovered.4  A  fortiori,  a  municipal  corpora- 
tion cannot  be  legally  negligent  in  the  doing  of  an  act  which  it  was 
unlawful  for  it  to  do;  as,  in  placing  or  failing  to  place  a  railing  upon 
a  bridge  which  was  the  property  of  the  state.5  The  tendency  of 
recent  decisions,  however,  is  to  impose  liability  upon  the  corpora- 
tion whenever  the  negligent  act,  although  in  excess  of  the  power 
actually  vested,  falls  within  its  general  scope.  Thus,  where  the  city 
attempted  to  avoid  liability  for  negligence  in  the  construction  of  a 
certain  sewer  by  claiming  that  its  construction  was  an  unlawful 
act,  upon  which  negligence  could  not  be  predicated,  the  court,  in 
overruling  the  point,  said:  "If  it  were  ultra  vires  in  such  sense  as 
not  to  be  within  the  scope  of  the  corporate  powers  of  the  defend- 
ant, the  latter  would  not  be  answerable  for  the  consequences  re- 
sulting from  it,  although  the  persons  causing  the  work  to  be  done 
were  its  officers  or  agents,  and  assumed  to  act  as  such  in  doing  it. 
But  that  is  not  the  situation  presented  here.  It  was  legitimately 
within  the  corporate  power  of  the  defendant  to  construct  sewers,, 
and  it  may  be  that  in  attempting  to  execute  it  the  constituted  au- 
thorities went  to  some  extent  beyond  the  authority  conferred  upon, 
the  corporation  and  them  as  its  officers,  *  *  *  and,  thus  act- 
ing, the  defendant  may  be  chargeable  with  the  injury  to  others  re- 
sulting from  their  failure  to  properly  perform  the  duty  which  they 
had  assumed  to  discharge,  although  it  may  have  been  occasioned 
by  irregularity,  or  acts  on  their  part  in  excess  of  authority."  8  And 

Pragg,  31  Fla.  Ill,  12  South.  368;  Mayor,  etc.,  of  City  of  Albany  v.  Cunliff, 
'2  X.  Y.  105.  reversing  2  Barb.  (N.  Y.)  190;  Browning  v.  Board,  44  Ind.  11,  13;. 
Haag  v.  Board,  60  Ind.  511;  City  of  Pekin  v.  Newell,  26  111.  320;  Stoddard  v. 
Village  of  Saratoga  Springs,  127  N.  Y.  261,  27  N.  B.  1030;  Smith  v.  City 
of  Rochester,  76  N.  Y.  506;  Morrison  v.  City  of  Lawrence,  98  Mass.  219; 
Schumacher  v.  City  of  St.  Louis,  3  Mo.  App.  297.  Location  of  pest  house 
within  prohibited  territory  not  ultra  vires.  Clayton  v.  City  of  Henderson 
(Ky.)  44  S.  W.  667. 

4  City  of  Chicago  v.  Kelly,  69  111.  475;  City  of  Chicago  v.  Langlass,  52  111. 
256,  66  111.  361;  Hunt  v.  City  of  Boonville,  65  Mo.  620.  But  see  McGary  v. 
City  of  Lafayette,  12  Rob.  (La.)  668,  4  La.  Ann.  440. 

s  Carpenter  v.  City  of  Cohoes,  81  N.  Y.  21;  Sewell  v.  City  of  Cohoes,  75- 
N.  Y.  45. 

e  Stoddard  v.  Village  of  Saratoga  Springs,   127  N.  Y.  261,  27  N.  E.   1030, 


446  NEGLIGENCE    OF    MUNICIPAL    CORPORATIONS.  (Ch.   11 

the  fact  that  licenses  have  been  illegally  granted  has  not,  in  sev- 
eral instances,  been  held  sufficient  to  defeat  an  action  for  damages 
arising  from  negligence.7  The  principle  upon  which  the  immediately 
foregoing  decisions  rest  is  agreeable  to  reason  and  equity.  "It  is 
not  just  to  confer  upon  corporate  bodies  the  ability  to  manage  prop- 
erty and  to  engage  in  business  enterprises,  and  then  to  restrict  the 
remedies  of  individuals,  who  are  in  no  way  put  upon  inquiry  as  to 
the  extent  of  these  powers,  to  cases  where  the  corporation  has  kept 
strictly  within  its  charter  rights."  8 

Respondeat  Superior. 

The  general  principles  of  this  subject,  as  already  considered',9 
apply  equally  when  the  municipality  is  one  of  the  contracting  par- 
ties. It  is  therefore  not  intended  to  review  the  subject  in  this  con- 
nection, but  merely  to  restate  a  few  of  the  more  important  prin- 
ciples as  directly  applied  to  municipal  corporations. 

The  general  rule  is  that  the  principle  of  respondeat  superior  does 
not  extend  to  cases  of  independent  contracts,  where  the  party  for 
whom  the  work  is  to  be  done  is  not  the  immediate  superior  of  those 
guilty  of  the  wrongful  act,  and  has  no  choice  in  the  selection  of 
workmen,  and  no  control  over  the  manner  of  doing  the  work  under 
the  contract.10  There  are,  however,  modifications  of  this  general 
rule;  as  when  the  character  of  the  work  to  be  done  is  intrinsically 
dangerous,  and  the  injury  complained  of  is  the  direct  and  natural 
result  of  its  unskillful  performance.11  Thus,  where  the  obstruction 
or  defect  caused  or  erected  in  the  street  is  purely  collateral  to  the 
work  contracted  to  be  done,  and  is  entirely  the  result  of  the  wrong- 
ful acts  of  the  contractor  or  his  workmen,  the  rule  is  that  the  em- 
ployer is  not  liable;  but,  when  the  obstruction  or  defect  which  oc- 
casioned the  injury  results  directly  from  the  acts  which  the  con- 
See,  also,  Stanley  v.  City  of  Davenport,  54  Iowa,  463,  2  N.  W.  1064,  and  6  N.  W. 
706;  Gordon  v.  City  of  Taunton,  126  Mass.  349.  And  cf.  Bogie  v.  Town  of 
Waupun,  75  Wis.  1,  43  N.  W.  667,  with  Houfe  v.  Town  of  Fulton,  34  Wis.  608. 

i  Cohen  v.  Mayor,  etc.,  113  N.  Y.  532,  21  N.  E.  700. 

s  Jones,  Neg.  Mun.  Corp.  §  175. 

»  See  ante,  c.  4. 

10  Village  of  Jefferson  v.  Chapman,  127  111.  438,  20  N.  E.  33. 

11  City  of  Circleville  v.  Neuding,  41  Ohio  St.  465;    Carman  v.  Railroad  Co., 
4  Ohio  St.  399;    Prentiss  v.  City  of  Boston,  112  Mass.  43;    Boze  v.  City  of 
Albert  Lea  (Minn.)  76  N.  W.  1131. 


§    181)  ACTS    ULTRA    VIRES.  447 

tractor  agrees  and  is  authorized  to  do,  the  person  who  employs  the 
contractor,  and  authorizes  him  to  do  these  acts,  is  equally  liable  to 
the  injured  party.12  The  primary  duty  rests  upon  the  city  to  keep 
its  thoroughfares  in  a  reasonably  safe  condition  for  public  travel; 
and  when  a  projected  improvement,  repair,  or  alteration  necessi- 
tates the  tearing  up  or  excavation  of  a  street  it  cannot  relieve  itself 
of  this  duty  by  placing  the  work  in  the  hands  of  other  parties.13 
"When  the  negligence  of  the  contractor  is  collateral,  and  does  not 
involve  the  breach  of  a  primary  duty  owed  by  the  city,  the  former 
alone  is  responsible.  And  it  was  so  held  in  a  case  where  the  work 
undertaken  for  the  city  involved  the  placing  of  a  hydrant  in  college  ' 
grounds.  The  contractors  dug  a  ditch  for  this  purpose,  and  negli- 
gently left  it  unguarded,  and  it  was  held  that  no  liability  thereby 
attached  to  the  city.1*  Where  the  city  retains  any  material  part 
in  the  management  or  control  of  the  work,  or  directs  the  manner 
of  its  performance,  it  will  not  be  relieved  from  liability  for  injuries 
resulting  from  its  negligent  performance.15  Of  course,  if  the  re- 

12  Robbins  v.  City  of  Chicago,  4  Wall.  657;  Prentiss  v.  City  of  Boston,  112 
Mass.  43;  City  of  Circleville  v.  Neuding,  41  Ohio  St.  465;  City  of  Logansport 
v.  Dick,  70  Ind.  65.  A  town  that  contracts  with  an  individual  for  the  repair 
of  a  highway,  including  the  destruction  by  fire  of  brush  which  has  theretofore 
been  cut  and  piled,  is  not  liable  for  damages  to  a  third  person,  caused  by 
negligence  of  such  contractor  in  burning  the  brush.  Shute  v.  Princeton  Tp., 
58  Minn.  337,  59  N.  W.  1050. 

is  Turner  v.  City  of  Xewburgh,  109  N.  Y.  301,  16  N.  E.  344;  City  of  Circle- 
ville v.  Neuding,  41  Ohio  St.  465;  Hincks  v.  City  of  Milwaukee,  46  Wis.  559, 
1  N.  W.  230;  Brooks  v.  Inhabitants  of  Somerville.  106  Mass.  271;  City  of  Har- 
risburg  v.  Saylor,  87  Pa.  St  216;  Southwell  v.  City  of  Detroit,  74  Mich.-  438, 
42  N.  W.  118;  Vogel  v.  City  of  Xew  York,  92  N.  Y.  10;  Fowler  v.  Town  of 
Strawberry  Hill,  74  Iowa,  644,  38  N.  W.  521;  Mayor,  etc.,  of  City  of  Balti- 
more v.  O'Donnell,  53  Md.  110;  Mayor,  etc.,  of  City  of  Savannah  v.  Waldner, 
49  Ga.  316;  Todd  v.  City  of  Chicago,  18  111.  App.  565;  Grant  v.  City  of  Still- 
water,  35  Minn.  242,  28  X.  W.  660. 

i*  Harvey  v.  City  of  Hillsdale,  86  Mich.  330,  49  N.  W.  141.  See,  also,  Erie 
School  Dist.  v.  Fuess,  98  Pa.  St.  600;  Van  Winter  v.  Henry  Co.,  61  Iowa,  684, 
17  N.  W.  94;  City  of  Chicago  v.  Robbins,  4  Wall.  657,  2  Black,  418.  But  when 
plaintiff,  when  using  the  highway,  was  injured  through  the  negligence  of  a 
contractor  in  firing  a  blast,  it  was  held  he  could  not  recover.  Heeringtou 
v.  Village  of  Lansingburgh,  110  N.  Y.  145,  17  N.  E.  728.  Although  this  case 
comes  close  to  the  dividing  line,  it  does  not  conflict  with  the  principle  as 
stated.  Cf.  Carman  v.  Railroad  Co.,  4  Ohio  St.  399. 

15  Kelly  v.  Mayor,  etc.,  11  N.  Y.  432;    City  of  Cincinnati  v.  Stone,  5  Ohio 


448  NEGLIGENCE    OF    MUNrCIPAL    CORPORATIONS.  (Ch.    11 

served  control  or  direction  is  unimportant,  or  foreign  to  the  causes- 
leading  up  to  the  injury  complained  of,  the  question  of  liability  will 
not  be  thereby  affected.16  In  line,  also,  with  the  general  rule  of 
respondeat  superior,  it  must  appear  that  the  tortious  act  committed 
by  the  municipal  employe",  and  sought  to  be  charged  to  the  corpo- 
ration, was  committed  within  the  scope  of  the  authority  conferred 
by  the  city.17 

There  seems  to  be  no  valid  reason  why  a  municipal  corporation 
may  not  avail  itself  of  the  defense  of  fellow  servant,  under  the  same 
rules  and  limitations  which  apply  in  the  case  of  the  individual  em- 
ployer.18 

JUDICIAL  On  LEGISLATIVE  DUTIES. 

182.  No  implied  liability  rests  upon  a  municipal  corpora- 
tion for  the  misfeasance  or  nonfeasance  of  discre- 
tionary powers  -which  are  legislative  or  govern- 
mental in  character. 

As  already  observed,  governmental  duties  are  those  which  are 
assumed  by  the  state  for  the  general  benefit  and  protection  of  all 
its  citizens.  Their  performance  involves  the  exercise  of  a  sover- 
eign power>  and  the  manner  of  the  performance  cannot  be  meas- 
ured by  the  ordinary  standard  of  reasonable  care,  which  is  the 
criterion  of  individual  conduct.  If,  therefore,  in  the  exercise  of 
these  governmental  functions,  which  necessarily  devolve  upon  every 
community  and  municipality,  a  miscarriage  occurs,  whether  through 
omission  or  careless  performance,  the  individual  injured  thereby  can- 
not maintain  an  action  for  damages  against  the  derelict  agency.1 
On  this  point  Judge  Dillon  says:2  "But  the  discretion,  whatever 

St.  38;  City  of  St.  Paul  v.  Seitz,  3  Minn.  297  (Gil.  205);  Schumacher  v.  City 
of  New  York  (Sup.)  57  N.  Y.  Supp.  908. 

IB  Jones  v.  City  of  Liverpool,  14  Q.  B.  Div.  890. 

17  Alcorn  v.  City  of  Philadelphia,  44  Pa.  St.  348;  Sherman  v.  City  of  Grena- 
da, 51  Miss.  186;  Waller  v.  City  of  Dubuque,  69  Iowa,  541,  29  N.  W.  456. 

is  Conley  v.  City  of  Portland,  78  Me.  217,  3  Atl.  658;  but  a  laborer  placing 
pipes  in  a  trench  dug  by  another  set  of  employes  is  not  a  fellow  sen- ant  of  the 
latter,  Wanamaker  v.  City  of  Rochester,  63  Hun,  625,  17  N.  Y.  Supp.  321. 

§  182.     i  2  Dill.  Mun.  Corp.  (4th  Ed.)  §  949;  Jones,  Neg.  Mun.  Corp.  §  27. 

2  2  Dill.  Mun.  Corp.  (4th  Ed.)  §  966. 


§    182)  JUDICIAL    OR    LEGISLATIVE    DUTIES.  449 

its  grounds,  or  precise  boundaries  or  difficulties  in  its  application, 
is  well  established;  and  the  latter  class  of  corporations  [municipal] 
is  considered  to  be  impliedly  liable  (unless  the  legislation  nega- 
tives such  liability)  for  wrongful  acts  done  in  what  is  termed  their 
private  or  corporate  character,  and  from  which  they  derive  some 
special  or  immediate  advantage  or  emolument,  but  not  as  to  such 
acts  done  in  their  public  capacity,  as  governing  agencies,  in  the 
discharge  of  duties  imposed  for  the  public  or  general  (not  corpo- 
rate) benefit."  3 

Discretionary  Powers. 

Where  the  exercise  of  public  or  legislative  power  conferred  by 
statute  is  discretionary,  and  not  absolute,  in  character,  no  liability 
can  be  based  upon  the  failure  or  omission  to  exercise  it.*  Thus, 

s  See  Western  Saving  Fund  Soc.  of  Philadelphia  v.  City  of  Philadelphia, 
31  Pa.  St.  175,  189;  Oliver  v.  City  of  Worcester,  102  Mass.  489;  City  of 
Petersburg  v.  Applegarth's  Adni'r,  28  Grat.  (Va.)  321.  For  discussion  of  dis- 
tinction between  public  and  private  functions  of  municipal  corporations,  see 
opinion  of  Folger,  J.,  in  Maxniilian  v.  Mayor,  etc.,  62  N.  Y.  160.  See,  also, 
City  of  Galveston  v.  Posnainsky,  62  Tex.  118;  Aldrich  v.  Tripp,  11  R.  I.  141; 
Crossett  v.  City  of  Janesville,  28  Wis.  420;  Hannon  v.  St.  Louis  Co.,  62  Mo. 
313.  And  where  an  injury  was  received  by  reason  of  a  defectively  constructed 
highway  it  was  held  a  good  defense  that  the  manner  of  its  construction  was 
authorized  by  legislature.  Bedford  v.  Coggeshall,  19  R.  I.  313,  36  Atl.  89. 

*  Fair  v.  City  of  Philadelphia,  88  Pa.  St  309;  Borough  of  Xorristown  v. 
Fitzpatrick,  94  Pa.  St.  121;  McDndo  v.  City  of  Chester,  117  Pa,  St.  414, 
12  Atl.  421;  Lehigh  Co.  v.  Hoffort,  116  Pa.  St.  119,  9  Atl.  177;  Cole  v.  Trus- 
tees, 27  Barb.  (N.  Y.)  218;  Clemence  v.  City  of  Auburn,  66  N.  Y.  334;  Hyatt 
v.  Trustees,  44  Barb.  (X.  Y.)  385;  Seaman  v.  Mayor,  etc.,  80  X.  Y.  239;  Duke 
v.  Mayor,  etc.,  20  Ga.  635;  Rivers  v.  Council,  65  Ga.  376;  City  of  Aurora 
v.  Pulfer,  56  111.  270;  Goodrich  v.  City  of  Chicago,  20  111.  445;  City  of  Free- 
port  v.  Isbell,  83  111.  440;  Western  College  of  Homeopathic  Medicine  v.  City 
of  Cleveland,  12  Ohio  St.  375;  City  of  Dayton  v.  Pease,  4  Ohio  St.  80;  City 
of  Peru  v.  Gleason,  91  Ind.  566;  City  of  Anderson  v.  East,  117  Ind.  126,  19 
X.  E.  726;  Robinson  v.  City  of  Evausville,  87  Ind.  334;  White  v.  Yazoo 
City,  27  Miss.  357;  Kelley  v.  City  of  Milwaukee,  18  Wis.  83;  Hewison  v. 
City  of  New  Haven,  37  Conn.  475;  City  of  Detroit  v.  Beckman,  34  Mich. 
125;  Schattner  v.  City  of  Kansas,  53  Mo.  162;  Kiley  v.  City  of  Kansas,  87 
Mo.  103;  Armstrong  v.  City  of  Brunswick,  79  Mo.  319;  Reock  v.  Mayor,  etc., 
33  N.  J.  Law,  129;  Cole  v.  City  of  Xashville,  4  Sneed  (Tenn.)  102;  Lindholm 
v.  City  of  St.  Paul,  19  Minn.  245  (Gil.  204);  Ball  v.  Town  of  Woodbine,  61 
Iowa,  83,  15  X.  W.  846;  Van  Horn  v.  City  of  Des  Moines,  63  Iowa,  447,  19 
BAR.XEG.— 29 


450  NEGLIGENCE    OF   MUNICIPAL    CORPORATIONS.  (Ch.    11 

the  power  is  generally  conveyed  by  its  charter  to  the  municipality 
to  make  such  improvements  in  opening  and  grading  streets  as  it 
may  deem  expedient,  and  as  the  interest  of  the  public  may  require; 
but  if  the  corporation  omit  or  neglect  to  take  such  action  as  open- 
ing a  street,  no  matter  how  urgent  the  circumstances  may  be,  it 
cannot  be  made  liable  therefor  by  reason  of  injuries  resulting  to  an 
individual.5  So,  also,  no  liability  rests  upon  a  municipal  corpora- 
tion for  failure  to  abate  a  nuisance,6  or  to  provide  a  proper  supply 
of  water  and  apparatus  for  extinguishing  fires.7  And  where  the 
municipality  either  fails  to  adopt  by-laws  and  ordinances  for  proper 
government  and  the  protection  of  its  citizens,  or,  having  adopted 
such  by-laws,  fails  to  enforce  them,  no  liability  arises  from  result- 
ing injury.8  Thus,  although  the  city  of  Milwaukee  had  power,  by 

N.  W.  293;  Randall  v.  Railroad  Co.,  106  Mass.  276;  McDonough  v.  Mayor, 
etc.,  6  Nev.  90;  Fowle  v.  Council,  3  Pet.  398. 

5  Collins  v.  Mayor,  etc.,  77  Ga.  745.  See,  also,  Bauman  v.  City  of  De- 
troit, 58  Mich.  444,  25  N.  W.  391;  Wilson  v.  Mayor,  etc.,  1  Denio  (N.  Y.) 
595;  City  of  Anderson  v.  East,  117  Ind.  126,  19  N.  E.  726;  Keating  v.  City  of 
Kansas  City,  84  Mo.  415;  Horton  v.  Mayor,  etc.,  4  Lea  (Tenn.)  39;  McDade 
v.  City  of  Chester,  117  Pa.  St.  414,  12  Atl.  421;  Daly  v.  City  &  Town  of 
New  Haven,  69  Conn.  644,  38  Atl.  397. 

e  McCutcheon  v.  Homer,  43  Mich.  483,  5  N.  W.  668;  Armstrong  v.  City  of 
Brunswick,  79  Mo.  319;  City  of  Ft.  Worth  v.  Crawford,  64  Tex.  202;  Tainter 
v.  City  of  Worcester,  123  Mass.  311;  Ball  v.  Town  of  Woodbine,  61  Iowa, 
83,  15  N.  W.  846;  Smoot  v.  Mayor,  etc.,  24  Ala.  112;  Walker  v.  Hallock,  32 
Ind.  239;  Borough  of  Norristown  v.  Fitzpatrick,  94  Pa.  St.  121;  McDade  v. 
City  of  Chester,  117  Pa.  St.  414,  12  Atl.  421;  Kistner  v.  City  of  Indianapolis. 
100  Ind.  210;  Hill  v.  City  of  Boston,  122  Mass.  344;  People  v.  City  of 
Albany,  11  Wend.  (N.  Y.)  539;  Fowle  v.  Council,  3  Pet.  398;  Leonard  v.  City 
of  Hornellsville  (Sup.)  58  N.  Y.  Supp.  266. 

T  Tainter  v.  City  of  Worcester,  123  Mass.  311;  Patch  v.  City  of  Covington, 
17  B.  Mon.  (Ky.)  722;  Vanhorn  v.  City  of  Des  Moines,  63  Iowa,  447,  19  N.  W. 
293;  Brinkmeyer  v.  City  of  Evansville,  29  Ind.  187;  Wright  v.  Council.  78 
Ga.  241;  Eastman  v.  Meredith,  36  N.  H.  284;  Hafford  v.  City  of  New  Bed- 
ford, 16  Gray  (Mass.)  297;  Torbush  v.  City  of  Norwich.  38  Conn.  225;  Ogg  v. 
City  of  Lansing,  35  Iowa,  495;  Elliott  v.  City  of  Philadelphia,  75  Pa,  St. 
347;  Frederick  v.  City  of  Columbus,  58  Ohio  St.  538,  51  N.  E.  35;  Irvine  v. 
Mayor,  etc.  (Tenn.  Sup.)  47  S.  W.  419.  Nor  does  any  liability  exist  for  the 
negligence  of  a  fire  insurance  patrol,  Boyd  v.  Insurance  Patrol,  113  Pa.  St. 
269,  6  Atl.  536;  or  of  the  board  of  fire  commissioners,  O'Leary  v.  Board,  79 
Mich.  281,  44  N.  W.  608. 

«  Fowle  v.  Council,  3  Pet.  398,  409;   McCrowell  v.  Mayor,  etc.,  5  Lea  (Teiin.) 


§    183)  CONFLAGRATIONS    AND    DESTRUCTION    BY    MOBS.  451 

its  charter,  to  restrain  the  running  at  large  of  swine,  yet  a  com- 
plaint alleging  special  damages  by  reason  of  the  council  neglecting 
to  pass  any  ordinance  upon  that  subject  was  held  not  to  state  a 
cause  of  action.9  Nor  is  a  city  liable  for  the  failure  of  its  officers 
to  suppress  coasting; 10  nor  for  an  improper  or  mistaken  exercise 
of  discretion  in  the  matter  of  legislative  functions.  And  where  in- 
jury occurred  by  reason  of  a  horse  becoming  frightened  while  being 
driven  along  an  adjoining  street,  by  the  firing  of  a  cannon  on  the 
common,  under  a  license  granted  in  pursuance  of  an  ordinance, 
the  city  was  held  not  liable;  the  court  saying:  "The  ordinance 
set  out  in  the  declaration  is  not  the  exercise  of  an  owner's  author- 
ity over  his  property,  but  is  a  police  regulation  of  the  use  of  a  pub- 
lic place  by  the  public,  made  by  the  city  under  its  power  to  make 
needful  and  salutary  by-laws,  without  regard  to  the  accidental  own- 
ership of  the  fee."  "  Under  the  same  principle,  a  municipality  is  not 
liable  for  the  suspension  of  an  ordinance  forbidding  fireworks  dur- 
ing the  time  plaintiff's  house  was  destroyed  by  fireworks  negligently 
used  by  boys.12 

CONFLAGRATIONS  AND  DESTRUCTION  BY  MOBS. 

183.  Although  existing  independently  of  any  granted 
power,  cities,  and  even  individuals,  may,  in  cases 
of  urgent  public  necessity,  assume  the  exercise  of 
certain  discretions,  and,  if  justified  by  the  circum- 
stances, no  liability  will  be  incurred  for  resultant 
injury  to  private  property. 

685;  Griffin  v.  Mayor,  etc.,  9  N.  Y.  456;  Lorillard  v.  Town  of  Munroe,  11  N. 
Y.  392,  396;  Kiley  v.  City  of  Kansas,  87  Mo.  103;  Chandler  v.  City  of  Bay  St. 
Louis,  57  Miss.  327;  City  of  Anderson  v.  East,  117  Ind.  126,  19  N.  E.  726. 

»  Kelley  v.  City  of  Milwaukee,  18  Wis.  83.  And  see,  on  same  point,  Levy 
v.  Mayor,  etc.,  1  Sandf.  (N.  Y.)  465,  approved  in  Lorillard  v.  Town  of  Mun- 
roe, 11  N.  Y.  392. 

10  City  of  Wilmington  v.  Vandegrift,  1  Marv.  5,  29  Atl.  1047. 

11  Lincoln  v.  City  of  Boston,  148  Mass.  578,  580,  20  N.  E.  329. 

12  Hill  v.  Board,  72  N.  C.  55.    And  generally,  see  City  of  Pontiac  v.  Carter, 
32  Mich.  164;    Griffin  v.  Mayor,  etc.,  9  N.  Y.  456;    Dewey  v.  City  of  Detroit, 
15  Mich.  307;   Grant  v.  City  of  Erie,  69  Pa.  St.  420. 


452  NEGLIGENCE    OF    MUNICIPAL   CORPORATIONS.  (Ch.   11 

Thus,  in  case  of  conflagrations,  when  the  necessity  is  urgent, 
buildings  may  be  destroyed  to  prevent  the  spread  of  the  fire.  The 
maxim,  "Salus  populi  suprema  est  lex,"  has  thus  been  exemplified 
from  ancient  times;  Lord  Coke  saying  in  an  early  case:1  "For 
the  commonwealth  a  man  shall  suffer  damage;  as,  for  the  saving 
of  a  city  or  town,  a  house  shall  be  plucked  down  if  the  next  be  on 
fire.  This  every  man  may  do  without  being  liable  to  an  action." 
In  such  cases  no  recovery  can  be  had  against  the  municipality  in 
the  absence  of  statute  or  provision  in  the  charter  expressly  creat- 
ing such  liability,  it  being  held  that  such  a  destruction  is  not  a 
taking  of  private  property  for  public  uses.2  And  when  such  provi- 
sion is  made  for  compensation,  to  support  a  claim  for  property  thus 
destroyed  it  must  appear  that  the  circumstances  clearly  coincide 
with  the  provisions  of  the  enactment.3 

When  private  property  is  destroyed  by  mobs,  no  liability  for  com- 
pensation rests  upon  the  municipality,  even  if  it  has  failed  to  take 
ordinary  measures  for  its  protection  under  authority  expressly  con- 
ferred for  the  purpose,4  unless  such  remedy  has  been  expressly 
provided  either  by  charter  or  by  act  of  legislature.8 

§  183.  i  Mouse's  Case,  12  Coke,  63;  see,  also,  Maleverer  v.  Spinke,  1  Dyer, 
35;  Respublica  v.  Sparhawk,  1  Ball.  (Pa.)  357;  Taylor  v.  Inhabitants  of  Ply- 
mouth, 8  Mete.  (Mass.)  462;  Neuert  v.  City  of  Boston,  120  Mass.  338;  Smith 
v.  City  of  Rochester,  76  N.  Y.  506;  Bowditch  v.  City  of  Boston,  101  U.  S.  16. 

2  Field  v.  City  of  Des  Moines,  39  Iowa,  575. 

s  Coffin  v.  Town  of  Nantucket,  5  Cush.  (Mass.)  269;  Ruggles  v.  Inhabitants 
of  Nantucket,  11  Cush.  (Mass.)  433;  Hafford  v.  City  of  New  Bedford,  16  Gray 
(Mass.)  297;  Neuert  v.  City  of  Boston,  120  Mass.  338;  Howard  v.  City  and 
County  of  San  Francisco,  51  Cal.  52;  McDonald  v.  City  of  Red  Wing,  13  Minn. 
38  (Gil.  25);  Western  College  of  Homeopathic  Medicine  v.  City  of  Cleveland, 
12  Ohio  St.  375;  Hayes  v.  City  of  Oshkosh,  33  Wis.  314.  The  right  of  recov- 
ery by  the  property  owner  is  not  affected  by  the  fact  that  the  property  was 
insured,  the  insurance  company  becoming  subrogated  to  the  rights  of  the 
assured.  Mayor  of  City  of  New  York  v.  Pentz,  24  Wend.  (N.  Y.)  668. 

*  Hart  v.  Bridgeport,  13  Blatchf.  289,  Fed.  Cas.  No.  6,149;  Western  Col- 
lege of  Homeopathic  Medicine  v.  City  of  Cleveland,  12  Ohio  St.  375;  Prather 
v.  City  of  Lexington,  13  B.  Mon.  (Ky.)  559;  Chicago  League  Ball  Club  v.  City 
Of  Chicago,  77  111.  App.  124. 

e  Underbill  v.  City  of  Manchester,  45  N.  H.  214;  Russell  v.  Mayor,  etc., 
2  Denio  (N.  Y.)  461;  Campbell's  Adm'x  v.  Council,  53  Ala.  527;  Allegheny 
Co.  v.  Gibson's  Sons  &  Co.,  90  Pa.  St  297;  City  of  Chicago  v.  Manhattan 


§    184)  PUBLIC    HEALTH    AND    SANITATION.  453 


PUBLIC  HEALTH  AND  SANITATION. 

184.  The  preservation  of  the  health  of  the  public  by  means 
of  proper  measures  for  sanitation  is  like-wise  a  gov- 
ernmental duty,  resting  upon  the  state,  and  not 
upon  the  municipality;  and,  in  the  absence  of  spe- 
cial provision  by  statute,  no  obligation  to  this  end 
rests  upon  any  locality  or  municipality;  and,  even 
if  such  obligation  is  assumed,  and  negligently  car- 
ried out,  no  liability  -will  result. 

This  is  exemplified  in  the  negligence  of  the  properly  constituted 
"board  of  health  to  perform  its  special  duties,  no  responsibility  for 
such  negligent  conduct  resting  upon  the  city.1 

-Cement  Co.,  178  111.  372,  53  N.  E.  68;    Salisbury  v.  Washington  Co.,  22  Misc. 
Rep.  41,  48  N.  Y.  Supp.  122. 

§  184.  i  Bryant  Y.  City  of  St.  Paul,  33  Minn.  289,  23  N.  W.  220.  In  this 
case  the  plaintiff  sought  to  charge  the  defendant  for  the  misfeasance  or  neg- 
ligence of  the  board  of  health  or  its  agents  in  leaving  a  vault  upon  private 
premises  exposed  and  open  after  removing  its  contents,  in  consequence  of 
which  plaintiff,  without  fault  on  her  part,  fell  into  the  vault,  and  was  in- 
jured. In  deciding  the  case  the  court  says  (page  293,  33  Minn.,  and  page 
221,  23  N.  W.:  "The  question,  then,  presented  for  our  consideration,  is 
whether  the  alleged  negligence  of  the  board  created  a  corporate  liability  as 
against  the  city.  The  duty  is  imposed  by  the  legislature  upon  the  board 
•of  health,  under  the  police  power,  to  be  exercised  for  the  benefit  of  the  public 
generally.  It  is  one  in  which  the  city  corporation  has  no  particular  interest, 
and  from  which  it  derives  no  special  benefit  in  its  corporate  capacity.  And 
we  think  it  clear  that,  as  respects  an  agency  thus  created  for  the  public 
service,  the  city  should  not  be  held  liable  for  the  manner  in  which  such  serv- 
ice is  performed  by  the  board.  2  Dill.  Mun.  Corp.  (4th  Ed.)  §  976,  etc.  It  is 
bound  to  discharge  its  official  duty,  not  by  virtue  of  its  responsibility  to  the 
municipality,  but  for  the  general  welfare  of  the  community,  and  no  action 
will  lie  against  the  city  for  the  acts  of  the  board,  unless  given  by  statute." 
City  of  Richmond  v.  Long's  Adm'rs,  17  Grat  (Va.)  375.  And  see  Fisher  v. 
•City  of  Boston,  104  Mass.  87;  Hayes  v.  City  of  Oshkosh,  33  Wis.  314;  Max- 
milian  v.  City  of  New  York,  62  N.  Y.  160;  Ogg  v.  City  of  Lansing,  35  Iowa, 
495;  Welsh  v.  Village  of  Rutland,  56  Vt.  228;  Tindley  v.  City  of  Salem,  137 
Mass.  171;  Condict  v.  Jersey  City,  46  N.  J.  Law,  157;  Smith  v.  City  of  Roch- 
ester, 76  N.  Y.  506;  Webb  v.  Board  (Mich.)  74  N.  W.  734. 


454  NEGLIGENCE    OF    MUNICIPAL   CORPORATIONS.  (Ch.   11 


QUASI  MUNICIPAL  CORPORATIONS. 
• 
185.  In  a  majority  of  states  quasi  municipal  corporations 

are  not  liable  for  failure  to  maintain  high-ways  and 
bridges  in  a  reasonably  safe  condition.  But  the  de- 
cisions are  largely  dictated  by  statutes,  and  do  not 
establish  the  foregoing  rule  on  principle. 

As  already  stated,1  quasi  municipal  corporations  are  merely  polit- 
ical divisions  of  the  state,  created  for  purposes  of  convenience  in 
administering  the  general  government.  They  are  generally  created 
without  the  volition  or  consent  of  the  inhabitants  of  the  territory 
involved,  and  are,  therefore,  more  restricted  in  their  powers,  rights, 
and  responsibilities.  Counties,  townships,  school  districts,  and  the 
New  England  towns  belong  to  this  class  of  corporations. 

It  is  generally  supposed  and  asserted  to  be  the  well-settled  law 
of  this  country  that  a  clearly-drawn  distinction  exists  between  the 
liability  of  chartered  municipal  corporations  proper  and  that  of 
quasi  municipal  corporations,  for  negligence  regarding  the  construc- 
tion and  maintenance  of  highways  and  bridges,2  but  a  careful  ex- 
amination of  the  adjudicated  cases  discloses  that  they  are  by  no 
means  entirely  harmonious,  and  that  the  foregoing  principle  cannot 
be  thus  broadly  asserted.3  If  a  defined  locality  is  endowed  by  the 

§  185.    i  See  ante,  p.  425. 

22  Dill.  Mun.  Corp.  (4th  Ed.)  §  997.  And  see,  also,  Id.  §  1023b;  Shear.  & 
R.  Neg.  (4th  Ed.)  §§  256,  289,  citing  Russell  v.  Men  of  Devon,  2  Term  R.  667; 
Weightman  v.  Washington,  1  Black,  39;  Riddle  v.  Proprietors  of  Locks,  7 
Mass.  169;  Mower  v.  Inhabitants  of  Leicester,  9  Mass.  247;  Beardsley  v. 
Smith,  16  Conn.  375;  Jones  v.  City  of  New  Haven,  34  Conn.  1;  Baxter  v. 
Turnpike  Co.,  22  Vt.  123;  Ball  v.  Town  of  Winchester,  32  N.  H.  443,  as  ex- 
plained and  limited  by  Oilman  v.  Laconia,  55  N.  H.  130;  Eastman  v.  Meredith, 
36  N.  H.  284;  Hill  v.  City  of  Boston,  122  Mass.  344;  Board  of  Chosen  Free- 
holders of  Sussex  Co.  v.  Strader,  18  N.  J.  Law,  108;  Cooley  v.  Chosen  Free- 
holders of  Essex  Co.,  27  N.  J.  Law,  415;  King  v.  St.  Landry,  12  La.  Ann.  858; 
Tritz  v.  Kansas  City,  84  Mo.  632;  Pettit  v.  Board,  87  Fed.  768;  Board  Com'rs 
Johnson  Co.  v.  Reinier,  18  Ind.  App.  119,  47  N.  E.  642;  Markey  v.  Queens 
Co.,  154  N.  Y.  675,  49  N.  E.  71,  39  Lawy.  Rep.  Ann.  46.  And  see,  also,  El- 
liott, Roads  &  S.  42. 

s  Jones,  Neg.  Mun.  Corp.  §  59.  "Every  independent  corporate  body  upon 
which  is  put  the  duty  of  repairing  the  highways  within  its  limits  should  be- 


§    185)  QUASI    MUNICIPAL    CORPORATIONS.  45-3 

state  with  the  power  to  hold  property,  and  exercise  ministerial  func- 
tions thereover,  the  essential  elements  of  a  corporation  exist,  even 
if  the  investment  of  authority  is  not  made  in  express  words  of  in- 
corporation.4 When  to  these  corporate  powers  is  coupled  by  stat- 
ute the  duty  to  keep  in  repair  the  highways  within  its  districts, 
the  obligation  and  responsibility  would  seem  to  be  complete;  and 
the  English  authorities  are  quite  uniform  to  this  effect.5  Many  of 
the  English  cases  further  hold  that  an  action  to  recover  for  in- 
juries sustained  by  reason  of  negligence  in  the  maintenance  of  a 
highway  can  be  maintained  against  a  public  corporation  having 
control  thereof,  although  no  such  action  is  given  by  statute,6  it  be- 
ing sufficient  if  the  negligence  emanates  from  a  corporation  capable 
of  being  sued  as  such.7  And  the  more  recent  English  decisions  hold 
incorporated  public  trustees  liable  for  negligence  in  the  line  of  their 
imposed  duties.8 

Rule  in  the   United  States. 

Although  it  may,  perhaps,  be  fairly  said  that  in  the  United  States 
the  general  rule  exempts  counties  from  a  liability  of  the  kind  under 
discussion,  unless  the  liability  is  expressly  imposed  by  statute,9  yet 
the  weight  of  authority  is  by  no  means  overwhelming,  and,  it  is  be- 

answerable  for  any  neglect  to  exercise  reasonable  care  to  keep  them  safe. 
And  it  is  ordinarily  admitted  that  every  such  body  is  answerable  to  the  public 
for  a  neglect  of  this  kind,  and  may  be  indicted  therefor."  Id.  §  60,  citing  Com. 
Dig.  tit.  "Chiniin,"  6,  3;  Rex  v.  Inhabitants  .of  West  Riding,  2  W.  Bl.  685; 
Russell  v.  Men  of  Devon,  2  Term  R.  GG7;  Hill  v.  City  of  Boston,  122  Mass.  344. 

4  See  Adams  v.  Wise-asset  Bank,  1  Greenl.  (Me.)  361;  Finch  v.  Board,  30 
Ohio  St.  37;  Riddle  v.  Proprietors  of  Locks,  7  Mass.  169. 

s  Russell  v.  Men  of  Devon,  2  Term  R.  667;  Kent  v.  Board,  10  Q.  B.  Div.  118, 
commenting  on  Russell  v.  Men  of  Devon;  Hartnall  v.  Commissioners,  4  Best 

6  S.  361,  33  Law  J.  Q.  B.  39;    Borough  of  Bathurst  v.  Macpherson,  4  App. 
Cas.  256.     For  early  English  rule  to  same  effect,  see  Jones,  Neg.  Mun.  Corp. 
§  16,  citing  Payne  v.  Partridge,  1  Show.  231;    Steinson  v.  Heath,  3  Lev.  400; 
Churchman  v.  Tunstal,  Hardr.  162;    Yielding  v.  Fay,  Cro.  Eliz.  569. 

e  Hartnall  v.  Commissioners,  4  Best  &  S.  361,  33  Law  J.  Q.  B.  39. 

7  Borough  of  Bathurst  v.  Macpherson,  4  App.  Cas.  256. 

s  Mersey  Docks  v.  Gibbs,  11  H.  L.  Cas.  686;    Winch  v.  Conservators,  L.  R. 

7  C.  P.  458;    Gilbert  v.  Trinity  House,  17  Q.  B.  Div.  795;    Smith  v.  Board,  3 
C.  P.  Div.  423. 

»  Hill  v.  Boston,  122  Mass.  344;  Dunn  v.  Society.  46  Ohio  St.  93,  18  N.  E. 
496;  Weightman  v.  Washington,  1  Black.  39;  Greene  Co.  v.  Eubanks.  SO  Ala. 


456  NEGLIGENCE    OF    MUNICIPAL    CORPORATIONS.  (Ch.    11 

lieved,  is  constantly  becoming  less.10  But  when  the  duty  to  repair 
highways  admittedly  rests  upon  a  municipal  corporation,  even  if  it 
be  a  so-called  "quasi  municipal  corporation,"  no  sound  reason  ap- 
pears why  it  should  not  be  liable  for  injuries  resulting  from  a  neg- 
lect of  this  duty,  and  in  many  carefully  considered  cases  it  has  been 
so  held.11  In  many  of  the  states  usually  cited  as  sustaining  the  so- 
called  "general  rule"  denying  the  liability  of  quasi  municipal  corpo- 
rations the  duty  of  repairing  highways  does  not  rest  upon  the  cor- 
poration at  all,12  and  in  some  instances,  by  statute,  is  placed  upon 
commissioners  or  other  corporate  officials.13  In  such  cases  it  is 
evidently  impossible  that  liability,  in  the  absence  of  an  express  pro- 
vision of  statute,  should  attach  to  the  corporations  themselves. 

It  is  therefore  evident  that,  in  order  to  determine  the  liability 
of  a  quasi  municipal  corporation  in  a  given  case,  the  local  statutes 

204;  Covington  Co.  v.  Kinney,  45  Ala.  176;  Scales  v.  Ghattahoochee  Co.,  41 
Ga.  225;  Arnold  v.  Henry  Co.,  81  Ga.  730,  8  S.  E.  606;  Riddle  v.  Proprietors 
of  Locks,  7  Mass.  169;  Baxter  v.  Turnpike  Co.,  22  Vt.  123;  Abbett  v.  Board, 
114  Ind.  61,  16  N.  E.  127;  Reardon  v.  St.  Louis  Co.,  36  Mo.  555;  King  v. 
Jury,  12  La.  Ann.  858;  Sutton  v.  Board,  41  Miss.  236;  Symonds  v.  Supervisors, 
71  111.  355;  Board  of  Chosen  Freeholders  of  Sussex  Co.  v.  Strader,  18  N.  J. 
Law,  108. 

10  Jones,  Neg.  Mun.  Corp.  §§  63,  64.     And  see  Beardsley  v.  City  of  Hartford, 
50  Conn.  529;   City  of  Denver  v.  Dunsmore,  7  Colo.  328,  3  Pac.  705. 

11  Rigony  v.  Schuylkill  Co.,  103  Pa.  St.  382;    Newlin  Tp.  v.  Davis,  77  Pa. 
St.  317;    Rapho  Tp.  v.  Moore,  68  Pa.  St.  404;    Mayor,  etc.,  of  Baltimore  v. 
Marriott,  9  Md.  160;    County  Com'rs  Anne  Arundel  Co.  v.  Duckett,  20  Md. 
468;    Baltimore  &  Y.  Turnpike  Co.  v.  Crowther,  63  Md.  558,  1  Atl.  279.     And 
in  OREGON,  under  statute.     McCalla  v.  Multnomah  Co.,  3  Or.  424;    Eastman 
v.  Clackamas  Co.,  32  Fed.  24.     But  cf.  Sheridan  v.  Salem,  14  Or.  328,  12  Pac. 
925;   City  of  Denver  v.  Dunsmore,  7  Colo.  328,  3  Pac.  705,    In  IOWA  the  lia- 
bility exists  as  to  defective  bridges.     Wilson  v.  Jefferson  Co.,  13  Iowa,  181; 
McCullom  v.  Black  Hawk  Co.,  21  Iowa,  409;    Chandler  v.   Fremont  Co.,  42 
Iowa,  58.     As  to  bridges,  also,  in  INDIANA.     Vaught  v.  Board,  101  Ind.*123; 
Knox  Co.  v.  Montgomery,  109  Ind.  69,  9  N.  E.  590. 

12  Greene  Co.  v.  Eubanks,  80  Ala.  204;    Sutton  v.  Board,  41  Miss.  236;    Sy- 
monds v.  Board,  71  111.  355;    Abbett  v.   Board,   114  Ind.   61,   16  N.   E.    127; 
Reardon  v.  St.  Louis  Co.,  36  Mo.  555;    King  v.  St  Landry,  12  La.  Ann.  858; 
Scales  v.  Chattahoochee  Co.,  41  Ga.  225. 

is  In  People  v.  Board  Town  Auditors  of  Esopus,  74  N.  Y.  310,  the  court 
says:  "Commissioners  of  highways  have,  by  the  statute,  the  care  and  su- 
perintendence of  highways.  *  *  *  On  the  other  hand,  the  town,  in  its 


§    185)  QUASI    MUNICIPAL   CORPORATIONS.  457 

should  be  closely  examined,  and  no  case  should  be  cited  as  sup- 
porting a  given  rule  until  an  examination  of  the  statutes  influ- 
encing the  decision  has  been  made. 

<x>rporate  character,  has  no  control  over  the  highways.  It  cannot  lay  out  a 
highway,  or  discontinue  one.  It  is  not  liable  for  failure  to  keep  highways  in 
repair."  And  see  Monk  v.  Town  of  New  Utrecht,  104  N.  Y.  552,  11  N.  E.  268. 
The  liability  hi  New  York  is  now  Imposed  on  the  municipalities  by  statute. 
Laws  1881,  c.  700. 


TABLE  OF  CASES  CITED. 


A 

Page 

Abbett  v.  Board,  114  Ind.  61,  1C  N.  E.  127 456 

Abbitt  v.  Railroad  Co.  (Ind.  Sup.)  40  N.  E.  40;    150  Ind.  498,  50  N.  E. 

729  55,  56 

Abbot  v.  McCadden,  81  Wis.  563,  51  N.  W.  1079 408 

Abbott  v.  Bradstreet,  55  Me.  530 217,  277 

Abeel  v.  Swann,  21  Misc.  Rep.  677,  47  N.  Y.  Supp.  1088 375 

Abel  v.  Canal  Co.,  103  N.  Y.  581,  9  N.  E.  325 102 

128  N.  Y.  662,  28  N.  E.  663 102 

Abrams  v.  Railway  Co.,  87  Wis.  485,  58  N.  W.  780 239 

Adarns  v.  Iron  Cliffs  Co.,  78  Mich.  271,  288,  44  N.  W.  270,  276 133,  136 

v.  Spangler,  17  Fed.  133 384 

v.  Steamboat  Co.,  151  N.  Y.  163,  45  N.  E.  369 270 

v.  Town  of  Chicopee,  147  Mass.  440,  18  N.  E.  231 434 

v.  Wiscasset  Bank,  1  Greenl.  (Me.)  361 455 

Adams  Exp.  Co.  v.  Darnell,   31   Ind.    20 .218,  283 

v.  Harris,  120  Ind.  73,  21  N.  E.  340 249 

v.  Haynes,  42  111.  89 244,  258 

v.  Holmes  (Pa.  Sup.)  9  Atl.  166 249 

v.  Jackson,  92  Tenn.  326,  21  S.  W.  666 23 

v.  Nock,  2  Duv.  (Ky.)  562 257 

v.  Reagan,  29  Ind.  21 251 

v.  Stettaners,  61  111.  184 244,  249,  258 

v.  Wilson,  81  111.  339 293,  295 

Agnew  v.  The  Contra  Costa,  27  Cal.  425 262 

v.  Corunna,  55  Mich.  428,  21  N.  W.  873 18 

Agricultural  &  Mechanical  Ass'n  v.  State,  71  Md.  86,  18  Atl.  37 410 

Ahern  v.  Steele,  48  Hun,  517,  1  N.  Y.  Supp.  259 409,  411 

115  N.  Y.  203,  22  N.  E.  193 312 

Aicher  v.  City  of  Denver,  10  Colo.  App.  413,  52  Pac.  86 429 

Aiken  v.  Railway  Co.,  68  Iowa,  363,  27  N.  W.  281 293 

Airey  v.  Merrill,  2  Curt.  8,  Fed.  Cas.  No.  115 253 

Akers  v.  Railroad  Co.,  58  Minn.  540,  60  N.  W.  669 50,  307 

Alabama  G.  S.  R.  Co.  v.  Anderson,  109  Ala.  299,  19  South.  516 32,  338 

v.  Burgess,  116  Ala.  509,  22  South.  913 394,  405 

v.  Coggins,  32  C.  C.  A.  1,  88  Fed.  455 80,  208 

v.  Davis  (Ala.)  24  South.  862 116,  117,  145 

v.  Dobbs,  101  Ala.  219,  12  South.  770 63 

v.  Fulghum,  94  Ga.  571,  19  S.  E.  981 103 

v.  Little,  71  Ala.  611 249 

BAR.NEG.  (459) 


460  CASES  CITED. 

Page 

Alabama  G.  S.  R.  Co.  v.  McAlpine,  75  Ala.  113 344 

v.  Sellers,  93  Ala.  9,  9  South.  375 180 

v.  Yarbrough,  83  Ala.  238,  3  South.  447 187 

Alabama  Mineral  R.  Co.  v.  Marcus,  115  Ala.  389,  22  South.  135 118 

Alabama  &  T.  R.  Co.  v.  Kidd,  35  Ala.  209 .283,  288 

Alabama  &  V.  R.  Co.  v.  Davis,  69  Miss-  444,  13  South.  G93 59 

v.  Drummond,  73  Miss.  813,  20  South.  7 193,  194 

v.  Purnell,  69  Miss.  652,  13  South.  472 210 

v.  Searles,  71  Miss.  744,  16  South.  255 223 

Alair  v.  Railroad  Co.,  53  Minn.  160,  54  N.  W.  1072 248 

Alaska  Treadwell  Gold-Min.  Co.  v.  Whelan,  12  C.  C.  A.  225,  64  Fed.  462. .     37 

Albertson  v.  Railroad  Co.,  48  Iowa,  292 62 

Albion  Lumber  Co.  v.  De  Nobra,  19  C.  C.  A.  168,  72  Fed.  739 176 

Albrittin  v.  Mayor,  etc.,  60  Ala.  486 432 

Alcorn  v.  City  of  Philadelphia,  44  Pa.  St.  348. .441,  448 

Alden  v.  City  of  Minneapolis,  24  Minn.  254 438 

Alder  v.  Buckley,  1  Swan  (Tenn.)  69 378 

Aldrich  v.  Tripp,  11  R.  I.  141 449 

Alexander  v.  City  of  Milwaukee,  16  Wis.  247 428 

v.  City  of  Vicksburg,  68  Miss.  564,  10  South.  62 443 

v.  Greene,  7  Hill,  533 245 

Alger  v.  City  of  Lowell,  3  Allen  (Mass.)  402,  406 77 

Aliiie,  The,  25  Fed.  562 248 

All  v.  Barnwell  Co.,  29  N.  C.  161,  7  S.  E.  58 399 

Allan  v.  Steamship  Co.,  132  N.  Y.  91,  30  N.  E.  482 370 

Allegheny  Co.  v.  Gibson's  Sons  &  Co.,  90  Pa.  St.  297 452 

Allen  v.  City  of  Boston,  159  Mass.  324,  34  N.  E.  519 429 

v.  Kirk,  81  Iowa,  658,  47  N.  W.  906 383 

v.  Railroad  Co.,  106  Iowa,  602,  76  N.  W.  848 336 

L.  R.  6  Q.  B.  65 173 

79  Me.  327,  9  Atl.  895 298 

Allender  v.  Railroad  Co.,  37  Iowa,  264 178 

Allerton  v.  Railroad  Co.,  146  Mass.  241,  15  N.  E.  621 179 

Ailing  v.  Railroad  Co.,  126  Mass.  121 271-273 

Allison  v.  Railroad  Co.,  42  Iowa,  274 206 

Allyn  v.  Railroad  Co.,  105  Mass.  77 82 

Almond  v.  Nugent,  34  Iowa,  300 378 

Alpern  v.  Churchill,  53  Mich.  607,  19  N.  W.  549 359 

Alston  v.  Herring,  11  Exch.  822 223 

Althorf  v.  Wolfe,  22  N.  Y.  355 154,  156,  414 

Alton  Building  &  Fire-Brick  Co.  v.  Hudson,  176  111.  270,  52  N.  E.  256 117 

America,  The,  6  Ben.  122,  Fed.  Cas.  No.  282 84 

8  Ben.  491,  Fed.  Cas.  No.  283 218 

American  Contract  Co.  v.  Cross,  8  Bush  (Ky.)  472 270 

American  Exp.  Co.  v.  Bank,  69  Pa.  St.  394 294 

v.  Greenhalgh,  80  111.  68 297 

v.  Haire,  21  Ind.  4 387 

v.  Hockett,  30  Ind.  250 215 

v.  Lesem,  39  111.  313 284. 


CASES  CITED.  461 

Page 

American  Exp.  Co.  v.  Perkins,  42  111.  458 231 

v.  Sands,  55  Pa.  St.  140 249- 

r.  Smith,  33  Ohio  St.  511,  31  Am.  Rep.  561 222,  234 

American  Merchants'  Union  Exp.  Co.  v.  Scliier,  55  111.  140 258,  282 

v.  Wolf,  79  111.  430 2S2,  2S& 

American  Roofing  Co.  v.  Packet  Co.,  5  Ohio  X.  P.  146 290 

American  S.  S.  Co.  v.  Bryan,  83  Pa.  St.  446 271 

American  Strawboard  Co.  v.  Railroad  Co.,  75  111.  App.  420 354: 

American  Telephone  &  Telegraph  Co.  v.  Bower,  20  Iiid.  App.  32,  49  N.  E. 

182    14T 

American  Union  Exp.  Co.  v.  Robinson,  72  Pa.  St.  274 283 

Ames  v.  Jordan,  71  Me.  540 157 

Amies  v.  Stevens,  1  Strange,  128 223 

Anchor  Line  v.  Dater,  68  111.  369 25& 

Anderson  v.  Buckton,  1  Strange,  192 366. 

v.  Hayes,  101  Wis.  538,  77  N.  W.  891 314,  316 

v.  Johett,  14  La.  Ann.  614 388- 

v.  Lumber  Co.,  67  Minn.  79,  69  N.  W.  630 48 

v.  Mills  Co.,  32  C.  C.  A.  143,  88  Fed.  944 107 

42  Minn.  424,  44  N.  W.  315 103 

v.  Mining  Co.,  16  Utah,  28,  50  Pac.  815 , 150 

v.  Morrison,  22  Minn.  274 87,  119- 

V.  Railway  Co.,  62  Fed.  46 195 

93  Iowa,  561,  61  X.  W.  1058 347 

39  Minn.  523,  41  N.  W.  104 141 

35  Neb.  95,  52  N.  W.  840 405,  412 

19  Wash.  340,  53  Pac.  345 49,  307 

v.  Steamboat  Co.,  64  N.  C.  399 354 

Anderson  &  Nelson  Distilling  Co.  v.  Hair  (Ky.)  44  S.  W.  658 50,  304 

Andrews  v.  Railroad  Co.,  34  Conn.  57 421 

86  Iowa,  677,  53  N.  W.  399 205 

Angle  v.  Railroad  Co.,  9  Iowa,  487 293,  295 

Anglin  v.  Railway  Co.,  9  C.  C.  A.  130,  60  Fed.  553 109 

Annapolis  &  E.  R.  Co.  v.  Gantt,  39  Md.  115 352 

Annas  v.  Railroad  Co.,  67  Wis.  46,  30  N.  W.  282 413 

Anne  Arundel  County  Com'rs  v.  Duckett,  20  Md.  469 426 

Anniston  &  A.  R.  Co.  v.  Ledbetter,  92  Ala.  326,  9  South.  73 286 

Anthony  v.  Railroad  Co.,  27  Fed.  724 203 

Applebee  v.  Percy,  L.  R.  9  C.  P.  647 365 

Appleby  v.  Railway  Co.,  54  Minn.  169,  55  N.  W.  1117 198 

Apsey  v.  Railroad  Co.,  83  Mich.  440,  47  N.  W.  513 40 

Arcade  File  Works  v.  Juteau,  15  Ind.  App.  385,  40  N.  E.  818,  44  N.  E.  326. .  106 

Arctic  Fire  Ins.  Co.  v.  Austin,  69  N.  Y.  470 54,  57,  58 

Ardesco  Oil  Co.  v.  Gilson,  63  Pa.  St.  146,  150 140,  162: 

Arkansas  Midland  Ry.  Co.  v.  Griffith,  63  Ark.  491,  39  S.  W.  550.  .187,  204,  206 

Arkerson  v.  Dennison,  117  Mass.  407 117 

Armstrong  v.  Bell  (Ky.)  42  S.  W.  1131 383 

v.  City  of  Brunswick,  79  Mo.  319 449,  45O 

v.  Express  Co.,  159  Pa.  St  640,  28  Atl.  448 239,  266- 


4G2  CASES  CITED. 

Page 

Arnold  v.  Halenbake,  5  Wend.  (.N.  Y.)  33 216 

v.  Henry  Co.,  81  Ga.  730,  8  S.  E.  606 456 

v.  Railroad  Co.,  83  111.  273 187,  212,  244,  252 

Arrowsuiith  v.  Kailroad  Co.,  57  Fed.  165 Ib8,  189 

Am  v.  Kailroad  Co.,  34  Iowa,  153 332 

Ashland  Coal,  Iron  &  Railway  Co.  v.  Wallace's  Adiu'r,  42  S.  W.  744 87,  147 

Ashley  v.  City  of  Port  Huron,  35  Mich.  296 428 

Ashman  v.  Railway  Co.,  90  Mich.  567,  51  N.  W.  645 137 

Ashinore  v.  Transportation  Co.,  28  N.  J.  Law,  180 239,  253 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Brown,  26  Kan.  443 410,  411 

v.  Cross,  58  Kan.  424,  49  Pac.  599 336 

v.  Cupello,  61  111.  App.  432 347 

v.  Dwelle,  44  Kan.  394,  24  Pac.  500 184 

v.  Gants,  38  Kan.  608,  17  Pac.  54 198 

v.  Grant,  6  Tex.  Civ.  App.  674,  26  S.  W.  286 291 

v.  Henry,  57  Kan.  154,  45  Pac.  576 80 

v.  Holland  (Kan.  Sup.)  56  Pac.  6 330,  331 

v.  Huitt,  1  Kan.  App.  788,  41  Pac.  1015 355,  357 

v.  McKee,  37  Kan.  592,  15  Pac.  484 147 

v.  Midgett,  1  Kan.  App.  138,  40  Pac.  995 121 

v.  Moore,  29  Kan.  632,  644 132 

v.  Morgan,  31  Kan.  77,  1  Pac.  298 328 

v.  Mulligan,  14  C.  C.  A.  547,  67  Fed.  569 145 

v.  Myers,  11  C.  C.  A.  439,  63  Fed.  793 96,  145 

v.  Roach,  35  Kan.  740,  12  Pac.  93 181 

v.  Roemer,  59  111.  App.  93 67 

v.  Rowan,  55  Kan.  270,  39  Pac.  1010 110 

v.  Smith,  28  Kan.  541 70 

v.  Wagner,  33  Kan.  660,  7  Pac.  204 91 

v.  Weber,  33  Kan.  543,  6  Pac.  877 175,  415 

v.  Wilson,  1  C.  C.  A.  25,  48  Fed.  57 408 

Atchison  &  N.  R.  Co.  v.  Washburn,  5  Neb.  117,  121 239,  269 

Atkinson  v.  Heer,  44  Ark.  174 382 

v.  Transportation  Co.,  60  Wis.  141,  18  N.  W.  764 11,  16,  19,  26,  352 

Atlanta  Consol.  St.  Ry.  Co.  v.  Bates,  103  Ga.  333,  30  S.  E.  41 179 

Atlanta  Cotton  Factory  Co.  v.  Speer,  69  Ga.  137 146 

Atlanta  &  C.  Air-Line  Ry.  Co.  v.  Gravitt,  93  Ga.  369,  20  S.  E.  550 71,  325 

Atlanta  &  R.  A.  L.  R.  Co.  v.  Ayers,  53  Ga.  12 79,  80 

Atlanta  &  W.  P.  R.  Co.  v.  Grate  Co.,  81  Ga.  602,  9  S.  E.  600 293 

Atlantic  &  D.  Ry.  Co.  v.  Rieger,  95  Va.  418,  28  S.  E.  590 328 

Atlas  Engine  Works  v.  Randall,  100  Ind.  293 113,  119,  146 

Attorney  General  v.  Brown,  1  Wis.  522 380 

Atwater  v.  Railroad  Co.,  48  N.  J.  Law,  5o,  2  Atl.  803 200,  201 

Atwood  v.  Railway  Co.,  91  Me.  399,  40  Atl.  67 37 

Auerbach  v.  Railroad  Co.,  89  N.  Y.  281 200 

Augusta  Factory  v.  Barnes,  72  Ga.  217 146 

Augusta  &  S.  R.  Co.  v.  McElmurry,  24  Ga.  75 46,  79 

Aurora  Branch  R.  Co.  v.  Grimes,  13  111.  585 310 

Austin  v.  Railroad  Co.,  8  Best  &  S.  327,  L.  R.  2  Q.  B.  442 191 


CASES  CITED.  463 

Page 

Austin  v.  Railroad  Co.,  172  Mass.  484,  52  N.  E.  527 93 

v.  Steamboat  Co.,  43  X.  Y.  75 24,  51 

Aycrigg's  Ex'rs  v.  Railroad  Co.,  30  N.  J.  Law,  460. .  T 173 

Ayers  v.  Railroad  Co.,  158  N.  Y.  254,  53  N.  E.  22 208 

Ayers'  Adm'x  v.  Railroad  Co.,  84  Va.  679,  5  S.  E.  582 127,  150 

Ayres  v.  Railroad  Co.,  71  Wis.  372,  37  N.  W.  432 262 

v.  Railroad  Corp.,  14  Blatchf.  9,  Fed.  Gas.  No.  689 253,  257 


B 

Babbage  v.  Powers,  130  N.  Y.  281,  29  N.  E.  132 163 

Babbitt  v.  Bumpus,  73  Mich.  331,  41  N.  W.  417 372 

Babcock  v.  Herbert,  3  Ala,  392 216 

Bachelder  v.  Heagan,  18  Me.  32 349,  350 

Backer  v.  Com'rs,  66  111.  App.  507 442 

Backhouse  v.  Sneed,  5  N.  C.  173 226 

Bacon  v.  City  of  Boston,  154  Mass.  100,  28  N.  E.  9. 426 

v.  Steamboat  Co.,  90  Me.  46,  37  Atl.  328 209 

Bahel  v.  Manning,  112  Mich.  24,  70  N.  W.  327,  36  Lawy.  Rep.  Ann.  523. .  368 

Baikie  v.  Chandless,  3  Camp.  17 373 

Bailey  v.  Gray,  53  S.  C.  503,  31  S.  E.  354 301 

v.  Mayor,  etc.,  3  Hill  (N.  Y.)  531 443 

v.  Railroad  Co.  (Ky.)  44  S.  W.  105 .' 207 

Baird  v.  Morford,  29  Iowa,  531 377 

v.  Pettit,  70  Pa.  St.  477^83 171 

Bajus  v.  Railroad  Co.,  103  N.  Y.  312,  8  N.  E.  529 91 

Baker  v.  Bailey,  16  Barb.  (N.  Y.)  54 393 

v.  Bolton,  1  Camp.  493 391 

v.  Brinson,  9  Rich.  Law  (S.  C.)  201 220 

v.  City  of  Portland,  58  Me.  199 46,  76,  77 

v.  Holtpzaffell,  4  Taunt.  45 315 

v.  Lee,  49  La.  Ann.  874,  21  South.  588 389 

v.  Railroad  Co.,  68  Ga.  699 146,  336 

118  X.  Y.  533,  23  N.  E.  885 181 

95  Pa.  St.  211 117 

48  S.  W.  (Mo.)  838 31,  85,  331,  332 

v.  Tibbetts,  162  Mass.  468,  39  N.  E.  350 304 

Baldwin  v.  Casella,  L.  R.  7  Exch.  325 365 

v.  Collins,  9  Rob.  (La.)  468 256 

V.  Express  Co.,  23  111.  197 215,  282 

v.  Railroad  Co.,  50  Iowa,  680 96 

v.  Weed,  17  Wend.  (N.  Y.)  224 383 

Bales  v.  Wlngfield,  4  Q.  B.  580 381 

Ball  v.  Railway  Co.,  83  Mo.  574 239 

v.  Town  of  Winchester,  32  N.  H.  443 454 

v.  Town  of  Woodbine,  61  Iowa,  83,  15  N.  W.  846 449.  450 

Ballentine  v.  Railroad  Co.,  40  Mo.  491 236 

Ballou  v.  Railway  Co.,  54  Wis.  257,  11  N.  W.  559 96 


464  CASES  CITED. 

Pag& 

Baltimore  City  Pass.  Ry.  Co.  v.  Cooney,  87  Md.  261,  39  Atl.  859 38,  52 

v.  Kemp,  61  Md.  619,  18  Am.  &  Eng.  R.  Cas.  220 14 

v.  McDonnell,  43  Md.  534 67,  71 

Baltimore  Elevator  Co.  v.  Neal,  65  Md.  438,  5  Atl.  338 148- 

Baltimore  P.  &  C.  R.  Co.  v.  McDonald,  68  Ind.  316 183,  197 

Baltimore  Steam-Packet  Co.  v.  Smith,  23  Md.  402 269- 

Baltimore  &  O.  R.  Co.  v.  Adams,  10  App.  D.  C.  97 59 

v.  Anderson,  29  C.  C.  A.  235,  87  Fed.  413 339 

v.  Barger,  80  Md.  23,  30  Atl.  560 172 

r.  Baugh,  149  U.  S.  368,  13  Sup.  Ct  914 126,  127,  132,  142,  143,  145 

v.  Boteler,  38  Md.  568 77 

v.  Camp,  13  C.  C.  A.  233,  65  Fed.  952 99,  145 

v.  Campbell,  36  Ohio  St  647 258,  293 

v.  Carr,  71  Md.  135,  17  Atl.  1052 192 

v.  Colvin,  118  Pa.  St.  230,  12  Atl.  337 100 

v.  Few's  Ex'rs,  94  Va.  82,  26  S.  E.  406 339 

v.  Fitzpatrick,  P.5  Md.  32 335 

V.  Griffith,  159  U.  S.  603,  16  Sup.  Ct.  105 330 

v.  Hellenthal,  88  Fed.  116,  31  C.  C.  A.  414 52 

v.  Kean,  65  Md.  394,  5  Atl.  325 51 

v.  McLaughlin,  19  C.  C.  A.  551,  73  Fed.  519 212 

v.  Mulligan,  45  Md.  486 51 

v.  Noell's  Adm'r,  32  Grat.  394 403,  411 

v.  Norris,  17  Ind.  App.  189.  49  N.  E.  554 184 

v.  Schumacher,  29  Md.  168,  176 294 

v.  State,  24  Md.  271 407 

30  Md.  47 62,  68,  395 

33  Md.  542-554 51,  171,  332 

41  Md.  268 407 

60  Md.  449 208,  412 

63  Md.  135 412 

79  Md.  335,  29  Atl.  518 59 

81  Md.  371,  32  Atl.  201 76 

v.  Sulphur  Springs  Independent  School  Dist,  96  Pa.  St.  65 23,  221 

v.  Sutherland,  12  Ohio  Cir.  Ct  R.  309 134 

v.  Talmage,  lo  Ind.  App.  203,  43  N.  E.  1019 338 

v.  Weedon,  24  C.  C.  A.  249,  78  Fed.  584 388 

v.  Whitacre,  35  Ohio  St  627 44,  84 

v.  Whittaker,  24  Ohio  St  642 88 

v.  Whittington's  Adm'r,  30  Grat.  (Va.)  805 103 

T.  Wightman's  Adm'r,  29  Grat.  (Va.)  431 403,  407,  408,  414, 

Baltimore  &  O.  S.  W.  Ry.  Co.  v.  Alsop,  71  111.  App.  54 326 

v.  Conoyer,  149  Ind.  524,  48  N.  E.  352 328,  332 

v.  Crawford,  65  111.  App.  113 252 

v.  Faith,  175  111.  58,  51  N.  E.  807 32 

v.  Ragsdale,  14  Ind.  App.  406,  42  N.  E.  1106 249,  250 

v.  Then,  159  111.  535,  42  N.  E.  971 68 

v.  Welsh,  17  Ind.  App.  505,  47  N.  E.  182 109 

Baltimore  &  O.  &  C.  R.  Co.  v.  Rowan,  104  Ind.  88,  3  N.  E.  627 89,  110 


CASES  CITED.  465 

Page 
Baltimore  &  P.  R.  Co.  v.  Jones,  93  U.  S.  439,  442 2,  35 

v.  Mac-key,  157  U.  S.  72,  15  Sup.  Ct.  491 92,  9(j 

v.  Webster,  6  App.  D.  C.  182 68,  32<5 

Baltimore  &  R.  Turnpike  Road  v.  State,  71  Md.  573,  18  Atl.  884 407 

Baltimore  &  S.  R.  Co.  v.  Woodruff,  4  Md.  242 3u4 

Baltimore  &  Y.  Turnpike  Co.  v.  Crowtlier,  63  Md.  558,  1  Atl.  279 456 

Bamberger  v.  Railway  Co.,  95  Tenn.  18,  31  S.  W.  163 62 

Bancroft  v.  Railroad  Co.  (N.  H.)  30  Atl.  409 108 

v.  Railroad  Corp.,  11  Allen  (Mass.)  34 398 

Bank  of  Kentucky  v.  Express  Co.,  93  U.  S.  174 215,  286 

Bank  of  New  South  Wales  v.  Owston,  4  App.  Gas.  270 174 

Banks  v.  City  of  Effingham,  63  111.  App.  221 110 

Banning  v.  Railroad  Co.,  89  Iowa,  74,  56  N.  W.  277 37 

Bansemer  v.  Railway  Co.,  25  Ind.  434 282,  288 

Barabasz  v.  Kabat,  86  Md.  23,  37  Atl.  720 158 

Barber  v.  Town  of  Essex,  27  Vt.  62 2 

Barber  Asphalt  Pav.  Co.  v.  Odasz,  29  C.  C.  A.  631,  85  Fed.  754 93 

Barbo  v.  Bassett,  35  Minn.  485,  29  N.  W.  198 117 

Barbour  v.  City  of  Ellsworth,  67  Me.  294 444 

Barce  v.  City  of  Shenandoah,  106  Iowa,  426,  76  N.  W.  747 434 

Barclay  v.  City  of  Boston,  167  Mass.  596,  46  N.  E.  113 437 

v.  Clyde,  2  E.  D.  Smith  (N.  Y.t  95 28.', 

Barden  v.  Felch,  109  Mass.  154 174 

Barker  v.  Coflin,  31  Barb.  (X.  Y.)  556 198,  199 

v.  Railroad  Co.,  151  N.  Y.  237,  45  N.  E.  550 201 

Barkman  v.  Railroad  Co.,  89  Fed.  453 182 

Barley  v.  Railroad  Co.,  4  Biss.  430,  Fed.  Cas.  No.  997 405 

Barman  v.  Spencer  (Ind.  Sup.)  49  N.  E.  9 50,  304,  316,  317 

Barnard  v.  Leigh,  1  Starkie,  43 382 

v.  Poor,  21  Pick.  (Mass.)  378 349 

v.  Ward,  9  Mass.  269 381 

Barnes  v.  District  of  Columbia,  91  U.  S.  541 425 

v.  Railroad  Co.,  47  La.  Ann.  1218,  17  South.  782 65,  66 

Barnes'  Adm'r  v.  Ward,  9  C.  B.  392 309 

Barney  v.  City  of  Lowell,  98  Mass.  570 443 

v.  Prentiss,  4  Har.  &  J.  (Md.)  317 256 

v.  Railroad  Co.,  126  Mo.  372,  28  S.  W.  1069 40 

v.  Steamboat  Co.,  67  N.  Y.  301 184,  192 

Barnhart  v.  Railway  Co.,  97  Iowa,  654,  66  N.  W.  902 342 

Barnum  v.  Railway  Co.,  30  Minn.  461,  16  N.  W.  364 403 

v.  Vandusen,  16  Conn.  200 362,  366 

Barrett  v.  Dolan,  130  Mass.  366 400 

v.  Railroad  Co..  81  Cal.  296,  22  Pac.  859 201 

45  N.  Y.  628 25,  54,  57 

Ban-on  v.  City  of  Detroit,  94  Mich.  601,  54  N.  W.  273 440 

v.  Eldredge,  100  Mass.  455 279,  280,  288 

Barrott  v.  Car  Co.,  51  Fed.  796 217 

Barry  v.  Railroad  Co.,  92  N.  Y.  289 326 

Barter  v.  Wheeler,  49  N.  H.  9 295 

BAR.NEG.-30 


466  CASES  CITED. 

Page 

Earth  v.  Railway  Co.,  142  Mo.  535.  44  S.  W.  778 405 

Bartholomew  v.  Railroad  Co.,  53  111.  227 289 

Bartlett  v.  Gaslight  Co.,  117  Mass.  533 20 

v.  Railway  Co.,  94  Ind.  281 235,  238 

v.  Town  of  Clarksburg  (W.  Va.)  31  S.  E.  918. 442 

Bartnik  v.  Railroad  Co.,  36  App.  Div.  246,'  55  N.  Y.  Supp.  2G6 202,  204 

Bartoushill  Coal  Co.  v.  Reid,  3  Macq.  H.  L.  Gas.  266 130 

Bass  v.  Railroad  Co.,  28  111.  9 354,  357 

.    36  Wis.  450 185,  195,  196 

39  Wis.  636 195 

42  Wis.  654 195 

Bassett  v.  Fish,  75  N.  Y.  303 44 

Bateman  v.  Railway  Co.  (Wash.)  54  Pac.  996 150 

Bates  v.  City  of  Houston,  14  Tex.  Civ.  App.  287,  37  S.  W.  383 443 

v.  Railroad  Co.,  84  Hun,  287,  32  N.  Y.  Supp.  337 337 

v.  Stanton,  1  Duer  (N.  Y.)  79 297 

Batson  v.  Donovan,  4  Barn.  &  Aid.  21,  28. 231,  259,  260 

Batterson  v.  Railway  Co.,  53  Mich.  125,  127,  18  N.  W.  584 115,  116 

Batton  v.  Railroad  Co.,  77  Ala.  591 207 

Bauer  v.  Lyons,  23  App.  Div.  205,  48  N.  Y.  Supp.  729 363 

Baulec  v.  Railroad  Co.,  59  N.  Y.  356 100 

Bauruan  v.  City  of  Detroit,  58  Mich.  444,  25  N.  W.  391 450 

Baumbach  v.  Railway  Co.,  4  Tex.  Civ.  App.  650,  23  S.  W.  693 288 

Baxter  v.  Railroad  Co.,  41  N.  Y.  502 332 

v.  Roberts,  44  Gal.  187 113 

v.  Turnpike  Co.,  22  Vt.  123 454,  456 

Bayer  v.  Railroad  Co.,  68  111.  App.  219 162 

Bayley  v.  Railroad  Co.,  L.  R.  8  C.  P.  148*. 1G8 

Baylis  v.  Cycle  Co.  (City  Ct.  Brook.)  14  N.  Y.  Supp.  933 172 

Bay  Shore  R.  Co.  v.  Harris,  67  Ala.  6 66 

Bealafield  v.  Borough  of  Verona,  188  Pa.  St  627,  41  Atl.  651 429 

Beall  v.  Athens  Tp.,  81  Mich.  536,  45  N.  W.  1014 18 

Beard  v.  Railroad  Co.,  79  Iowa,  518,  44  N.  W.  800 222,  227,  233,  234 

48  Vt.  101 208 

Beardsley  v.  City  of  Hartford,  50  Conn.  529 456 

v.  Smith,  16  Conn.  375 454 

Beattyville  &  C.  .G.  R.  Co.  v.  Maloney  (Ky.)  49  S.  W.  545 343 

Beauchamp  v.  Mining  Co.,  50  Mich.  163,  15  N.  W.  65 309 

Becher  v.  Railroad  Co.,  L.  R.  5  Q.  B.  241 273,  274 

Beck  v.  Evans,  16  East,  244 223,  238 

v.  Hood,  185  Pa.  St.  32,  39  Atl.  842 32 

v.  Mfg.  Co.,  82  Iowa,  2SG,  48  N.  W.  81 394 

Becke  v.  Railway  Co.,  102  Mo.  544,  13  S.  W.  1053 399 

Beckwith  v.  Frisbie,  32  Vt.  559 23!5 

v.  Railroad  Co.,  54  Hun,  446,  7  N.  Y.  Supp.  719,  721 333 

Bedell  v.  Railroad  Co.,  44  N.  Y.  367 354 

Bedford  v.  Railroad  Co.,  46  Mo.  456 357 

Beebe  v.  Ayres,  28  Barb.  (N.  Y.)  275 200 

Beehler  v.  Daniels,  18  R.  1.563,  29  Atl.  6 50 


CASES  CITED.  467 

Page 

Beehler  v.  Daniels,  19  R.  I.  49,  31  Atl.  582 48,  306,  3U7 

Beems  v.  Railway  Co.,  67  Iowa,  435,  25  N.  W.  693 413. 

Beers  v.  Railroad  Co.,  19  Conn.  566 86 

Beesley  v.  Wheeler,  103  Mich.  196,  61  N.  W.  658 136 

Beeson  v.  Mining  Co.,  57  Cal.  20 14G 

Beisiegel  v.  Railroad  Co.,  34  N.  Y.  622 334,  340 

Belcher  v.  Sheehan,  171  Mass.  513,  51  N.  E.  19 382 

Belden  v.  Car  Co.  (Tex.  Civ.  App.)  43  S.  W.  22 278 

Belding  v.  Railroad  Co.,  3  S.  D.  369,  53  N.  W.  750 397 

Belfast  v.  Boon,  41  Ala.  50 229,  230 

Belfast  &  B.  Ry.  Co.  v.  Keys,  9  H.  L.  Gas.  556 271,  272 

Belger  v.  Dinsmore,  51  Barb.  (N.  Y.)  69 257 

51  N.  Y.  166 257,  258 

Bell  v.  Railroad  Co.,  73  Ga.  520 418- 

29  Hun  (N.  Y.)  560 86 

v.  Reed,  4  Bin.  (Pa.)  127 222,  22S 

iBellefontaine  Ry.  Co.  v.  Hunter,  33  Ind.  335 82,  331 

v.  Snyder,  24  Ohio  St  070 62 

Belief ontaine  &  I.  R.  Co.  v.  Schruyhart,  10  Ohio  St.  116 344 

v.  Snyd-er,  18  Ohio  St.  399 62 

Bellemire  v.  Bank,  4  Whart.  (Pa.)  105 387 

Bellinger  v.  Railroad  Co.,  23  N.  Y.  42,  47 317,  318,  442 

Bellows  v.  Sackett,  15  Barb.  (N.  Y.)  96 303 

Beuiis  v.  Railroad  Co.,  42  Vt.  375 342,  344 

Ben  Adams,  The,  2  B*n.  445,  Fed.  Gas.  No.  1,289 285 

Benedict  v.  Schaettle,  12  Ohio  St.  515 298 

'fienett  v.  Steamboat  Co.,  6  C.  B.  775 216,  292 

Bengtson  v.  Railway  Co.,  47  Minn. '486,  50  N.  W.  531 115 

Benjamin  v.  Eldridge,  50  Cal.  612 420 

v.  Railway  Co.,  160  Mass.  3,  35  N.  E.  95 75 

133  Mo.  274,  34  S.  W.  590 18 

v.  Shea,  83  Iowa,  392,  49  N.  W.  989 388 

Bennett  v.  Byram,  38  Miss.  17 235,  236 

v.  Button,  10  N.  Y.  481,  487 254 

T.  Express  Co.,  83  Me.  236,  22  Atl.  159 233 

12  Or.  49,  6  Pac.  160 283 

V.  Railroad  Co.,  102  U.  S.  577 304 

57  Conn.  422,  18  Atl.  668 209 

133  N.  Y.  563.  30  N.  E.  1149 59 

2  X.  D.  112,  49  N.  W.  408 1015 

v.  Transportation  Co.,  36  N.  J.  Law,  225 57 

Benson  v.  Suarez,  43  Barb.  (N.  Y.)  408 312 

Benton  v.  Railroad  Co.,  55  Iowa,  496,  8  N.  W.  330 412 

Benzing  v.  Steinway,  101  N.  Y.  547,  5  N.  E.  449 27,  91,  93,  94,  96,  123 

Berea  Stone  Co.  v.  Kraft,  31  Ohio  St.  287 .134 

Berg  v.  Parsons,  84  Hun,  60,  31  N.  Y.  Supp.  1091 162 

v.  Railroad  Co.,  30  Kan.  561,  2  Pac.  639 182,  291 

70  Minn.  272,  73  X.  W.  648 19.  43 

v.  Steamship  Co.,  5  Daly  (N.  Y.)  394 292,  293 


468  CASES  CITED. 

Page 

Bergen  County  Traction  Co.  v.  Heitman's  Adm'r  (N.  J.  Err.  &  App.)  40 

Atl.   651   64 

Bergheim  v.  Railway  Co.,  3  C.  P.  Div.  221 279 

Berlin  Mills  Co.  v.  Croteau,  32  C.  C.  A.  126,  88  Fed.  860 49,  307 

Leruhard  v.  Railway  Co.,  68  Hun,  369,  22  X.  Y.  Supp.  821 323 

Berniua,  The,  13  App.  Gas.  1;  12  Prob.  Div.  58 57 

Bernstein  v.  Railroad  Co.,  72  Hun,  46,  25  N.  Y.  Supp.  669 181 

Berrigan  v.  Railroad  Co.,  131  N.  Y.  582,  30  N.  E.  57 102 

Berry  v.  Cooper,  28  Ga.  543 220,  238 

v.  Railroad  Co.,  70  Fed.  193 85 

72  Ga.  137 394 

122  N.  C.  100%  30  S.  E.  14 280 

44  W.  Va.  538,  30  S.  E.  143 252 

v.  Town  of  Wauwatosa,  87  Wis.  401,  58  N.  W.  751 426 

Bertelson  v.  Railway  Co.,  5  Dak.  313,  40  N.  W.  531 394 

Bertha  Zinc  Co.  v.  Martin's  Adm'r,  93  Va.  791,  22  S.  E.  869. . .. 32,  89,  92 

Berwald  v.  Ray,  8  Pa.  Super.  Ct  365,  43  Wkly.  Notes  Cas.  217 383 

Besenecker  v.  Sale,  8  Mo.  App.  211 405 

Besozzi  v.  Harris,  1  Fost.  &  F.  92 361 

Bessex  v.  Railroad  Co.,  45  Wis.  477 91,  150 

Best  v.  Town  of  Kinston,  106  N.  C.  205,  10  S.  E.  997 420 

Betts  v.  Trust  Co.,  21  Wis.  80 231 

Beuhring's  Adm'r  v.  Railway  Co.,  37  W.  Va.  502,  16  S.  E.  435 150 

Biddiscomb  v.  Cameron,  35  App.  Div.  561,  55  N.  Y.  Supp.  127 92 

Biddle  v.  Bond,  6  Best.  &  S.  225 297 

Bieling  v.  City  of  Brooklyn,  120  N.  Y.  98,  24  N.  E.  389 436 

Bierbach  v.  Rubber  Co.,  14  Fed.  826,  15  Fed.  490 87 

Bierbauer  v.  Railroad  Co.,  15  Hun  (N.  Y.)  559;   77  N.  Y.  588 411 

Big  Creek  Stone  Co.  v.  Wolf,  138  Ind.  496,  38  N.  E.  52 93 

Bigelow  v.  Inhabitants,  14  Gray  (Mass.)  541 440 

Biggs  v.  Barb-Wire  Co.  (Kan.  Sup.)  56  Pac.  4 49,  67,  306 

Biilman  v.  Railroad  Co.,  76  Ind.  166 324,  352 

Bingham  v.  Lamping,  26  Pa.  St.  340 233 

Binny  v.  Carney  (Sup.)  46  N.  Y.  Supp.  307 309 

Bird  v.  Brown,  4  Exch.  786 298 

v.  Cromwell,  1  Mo.  81 222,  223 

v.  Holbrook,  4  Bing.  628 308 

v.  Railroad  Co.,  99  Tenn.  719,  42  S.  W.  451 239 

Birge  v.  Gardner,  19  Conn.  506,  507 35,  68,  71,  82 

Birkett  v.  Ice  Co.,  110  N.  Y.  504,  18  N.  E.  108 410 

Birmingham  v.  Railroad  Co.  (Sup.)  14  N.  Y.  Supp.  13 206 

Bisaillon  v.  Blood,  64  N.  H.  565,  15  Atl.  147 71 

Bischoff  v.  Railway  Co.,  121  Mo.  216,  25  S.  W.  908 202 

Bissell  v.  Railroad  Co.,  22  N.  Y.  258 182 

25  X.  Y.  442 245.  252 

Bizzell  v.  Booker,  16  Ark.  308 3,  367 

Black  v.  Baxendale,  1  Exch.  410 235 

v.  Maitland,  11  App.  Div.  188,  42  N.  Y.  Supp.  653 312 


CASES  CITED.  469 

Paga 

Black  v.  Railroad  Co.,  Ill  111.  351 251 

38  Iowa,   515 323 

30  Neb.  197,  46  N.  W.  428 23,  221,  225,  227 

115  N.  C.  667,  30  S.  E.  713,  909 355 

v.  Transportation  Co.,  55  Wis.  319,  13  N.  W.  244 239,  247,  249,  253 

Blackburn  v.  Pacific  Co.  (Or.)  55  Pac.  225 332 

Blackman  v.  Electric  Co.,  102  Ga.  64,  29  S.  E.  120 146 

Blackstock  v.  Railroad  Co.,  20  N.  Y.  48 235 

Blackstone  v.  Foundry  Co.,  170  Mass.  321,  49  N.  E.  635 50,  306 

Blagrave  v.  Waterworks  Co.,  1  Hurl.  &  N.  369 4 

Blaine  v.  Railroad  Co.,  9  W.  Va.  252 2 

Blair  v.  Flack,  62  Hun,  509,  17  N.  Y.  Supp.  64 382 

v.  Railroad  Co.,  60  Mich.  124,  26  N.  W.  855 156 

66   N.   Y.   313 188,  189 

Blaisdell  v.  City  of  Portland,  39  Me.  113 435 

Blake  v.  Dick,  15  Mont.  236,  38  Pac.  1072 317 

v.  Railroad  Co.,  70  Me.  60 97 

18  Q.  B.  93,  21  Law  J.  Q.  B.  233 392 

Blanchard  v.  Isaaca,  3  Barb.  (N.  Y.)  388 280 

Bland  v.  Railroad  Co.,  55  Cal.  570 184 

Blankenship  v.  Railroad  Co.,  94  Va.  449,  27  S.  E.  20 51 

Blatt  v.  McBarron,  161  Mass.  21,  36  N.  E.  468 49 

Blazenic  v.  Coal  Co.,  102  Iowa,  706,  72  N.  W.  292 147 

Blessington  v.  City  of  Boston,  153  Mass.  409,  26  N.  E.  1113 163 

Bliss  v.  South  Hadley,  145  Mass.  91,  13  N.  E.  352 71 

Bliven  v.  Railroad  Co.,  36  N.  Y.  403 232 

Blodgett  v.  City  of  Boston,  8  Allen  (Mass.)  237 436 

Blomquist  v.  Railroad  Co.,  60  Minn.  426,  62  N.  W.  818 133,  141 

Blondin  v.  Quarry  Co.,  11  Ind.  App.  395,  37  N.  E.  812;  39  N.  E.  200 93 

Bloomingdale  v.  Railroad  Co.,  6  Lea  (Tenn.)  616 298 

Blossom  v.  Dodd,  43  N.  Y.  264,  269 256 

v.  Griffin,  13  N.  Y.  569 279 

Blower  v.  Railway  Co.,  L.  R.  7  C.  P.  655 223,  265 

Bloyd  v.  Railway  Co.,  58  Ark.  66,  22  S.  E.  1089 146 

Blue  v.  Railroad  Co.,  117  N.  C.  644,  23  S.  E.  275 355 

Blum  v.  Car  Co.,  1  Flip.  500,  Fed.  Cas.  No.  1,574 217 

Blumantle  v.  Railroad  Co.,  127  Mass.  322 273 

Blumenthal  v.  Brainerd,  38  Vt.  402 216,  218,  239,  287 

v.  Railroad  Co.,  79  Me.  550,  11  Atl.  605 273 

Blunt  v.  Aikin,  15  Wend.  (N.  Y.)  522 311 

Blyhl  v.  Village  of  Waterville,  57  Minn,  115,  58  N.  W.  817 430 

Blyth  v.  Waterworks  Co.,  11  Law  J.  Exch.  781 9,  10,  23,  24 

25  Law  J.  Exch.  213 2 

v.  Yopham,  Cro.  Jac.  158,  1  Rolle,  Abr.  88 310 

Ely  the  v.  Railway  Co.,  15  Colo.  333,  25  Pac.  702 23,  221,  225,  227 

Board  of  Chosen  Freeholders  of  Sussex  Co.   v.   Strader,   18  N.  J.   Law, 

108  454.  456 

Board  of  Com'rs  of  Boone  County  v.  Mutchler,  137  Ind.  140,  36  N.  E.  534  19,  56 


470  CASES  CITED. 

Page 

Board  of  Com'rs  of  Howard  Co.  v.  Legg,  93  Ind.  523 408 

110  Ind.  479,  11  X.  E.  612 407 

Board  of  Com'rs  of  Johnson  County  v.  Reinier,  18  Ind.  App.  119,  47  N.  E. 

642    454 

Board  of  Internal  Improvement  of  Shelby  Co.  v.  Scearce,  2  Duv.  (Ky.)  576..  392 

Boatwrlght  v.  Railroad  Co.,  25  S.  C.  128 149 

Boehl  v.  Railway  Co.,  44  Minn.  191,  46  N.  W.  333 239 

Boehm  v.  Combe,  2  Maule  &  S.  172,  174 279 

v.  Railway  Co.,  91  Wis.  592,  65  N.  W.  506 185,  187 

Boggs  v.  Lynch,  22  Mo.  563 100 

Bogie  v.  Town  of  Waupun,  75  Wis.  1,  43  N.  W.  667 44G 

Bohen  v.  City  of  Waseca,  32  Minn.  176,  19  N.  W.  730 436 

Bohn  Mfg.  Co.  v.  Erickson,  5  C.  C.  A.  341,  35  Fed.  943 106 

Bohrer  v.  Harness  Co.,  19  Ind.  App.  489,  45  N.  E.  668 162 

Boice  v.  Railroad  Co.,  61  Barb.  (N.  Y.)  611 198,  199 

Boland  v.  Railroad  Co.,  36  Mo.  484 67 

Bolch  v.  Smith,  7  Hurl.  &  N.  736 51 

Bolinger  v.  Railroad  Co.,  36  Minn.  418,  31  N.  W.  856 407 

Bolton  v.  Railway  Co.,  L.  R.  1  C.  P.  431 298 

Bomar  v.  Maxwell,  9  Humph.  (Tenn.)  620,  621 270,  271 

Bonce  v.  Railway  Co.,  53  Iowa,  278,  5  N.  W.  177. 216 

Bond  v.  Ward,  7  Mass.  123 385 

v.  Wilder,  16  Vt.  393 384 

Bonner  v.  Bridge  Co.,  5  Pa.  Super.  Ct.  281 91 

Bonnet  v.  Railway  Co.  (Tex.  Civ.  App.)  31  S.  W.  525 99,  112 

Boon  v.  The  Belfast,  40  Ala.  184 229 

Boorman  v.  Express  Co.,  21  Wis.  154 258 

Booth  v.  Mister,  7  Car.  &  P.  66 156 

v.  Railroad  Co.,  73  N.  Y.  38,  40 90,  98 

140  N.  Y.  267,  35  N.  E.  592 166 

Boothby  v.  Railroad  Co.,  90  Me.  313,  38  Atl.  155 327 

Borough  of  Bathurst  v.  Macpherson,  4  App.  Cas.  256 455 

Borough  of  Mauch  Chunk  v.  Kline,  100  Pa,  St.  119 434 

Borough  of  Nanticoke  v.  Warne,  106  Pa.  St.  373 61 

Borough  of  Norristown  v.  Fitzpatrick,  94  Pa.  St.  121 449,  450 

Boscowitz  v.  Express  Co.,  93  111.  523 222,  238 

Boskowitz  v.  Express  Co.  (111.)  5  Cent.  Law  J.  58 244 

Boston,  The,  1  Low.  464,  Fed.  Cas.  No.  1,671.  ^ 284,  285 

Boston  v.  Gray,  144  Mass.  53,  10  N.  E.  509 317 

Boston,  C.  &  M.  R.  Co.  v.  State,  32  N.  H.  215 392 

Boston  &  Hingham  Steamboat  Co.  v.  Munson,  117  Mass.  34 320 

Boston  &  L.  R.  Co.  v.  Proctor,  1  Allen  (Mass.)  267 199 

Boston  &  M.  R.  Co.  v.  Chipman,  146  Mass.  107,  14  N.  E.  940 199 

Boswell  v.  Barnhart,  96  Ga.  521,  23  S.  E.  414 146 

Bosworth  v.  Railway  Co.,  30  C.  C.  A.  541,  87  Fed.  72 291 

v.  Rogers,  27  C.  C.  A.  385,  82  Fed.  975 129 

v.  Walker,  27  C.  C.  A.  402,  83  Fed.  58 185 

Bottoms  v.  Railroad  Co.,  114  N.  C.  699,  19  S.  E.  730 65,  71 

JBowditch  v.  City  of  Boston,  101  U.  S.  16 443,  452 


CASES  CITED.  471 

Page 

Bowdle  v.  Railway  Co.,  103  Mich.  272,  61  X.  W.  529 205 

Bowe  v.  Hunking,  135  Mass.  380 315 

Bowen  v.  Railroad  Co.,  89  Hun,  594,  35  N.  Y.  Supp.  540 330,  336 

Bower  v.  Peate,  1  Q.  B.  Div.  321 165 

Bowers  v.  Railroad  Co.,  162  Mass.  312,  38  N.  E.  508 138 

158  Pa.  St.  302,  27  Atl.  893 ; 199 

Bowler  &  Burdick  Co.  v.  Railway  Co.,  10  Ohio  Cir.  Ct.  R.  272 273 

Bowman  v.  Railroad  Co.,  37  Barb.  (N.  Y.)  516 343 

v.  Tallman,  2  Rob.  (N.  Y.)  385 374 

v.  Teall,  23  Wend.  (N.  Y.)  306,  309 216,  227,  236 

v.  Woods,  1  G.  Greene  (Iowa)  441 377 

Boyce  v.  Fitzpatrick,  80  Ind.  526 95 

Boyd  v.  Insurance  Patrol,  113  Pa.  St.  269,  6  Atl.  536 450 

v.  Spencer,  103  Ga.  828,  30  S.  E.  841 199,  200 

v.  Town  of  Deny  (X.  H.)  38  Atl.  1005 430 

Boylan  v.  Everett,  172  Mass.  453,  52  X.  E.  541 362 

v.  Railroad  Co.,  132  U.  S.  146,  10  Sup.  Ct.  50 199 

Boyle  v.  Borough  of  Mahanoy  City,  187  Pa.  St.  1,  40  Atl.  1093,  42  Wkly. 

Xotes  Gas.  423 434 

v.  Railroad  Co.,  39  Hun  (N.  Y.)  171 343 

Boze  v.  City  of  Albert  Lea  (Minn.)  76  X.  W.  1131 444,  446 

Brabbits  v.  Railway  Co,  38  Wis.  289 150 

Bracey  v.  Carter,  12  Adol.  &  E.  373 371 

Bradford  City  v.  Downs,  126  Pa.  St.  622,  17  Atl.  884 54 

Bradley  v.  Fisher,  13  Wall.  335 380 

V.  Railroad  Co.,  2  Gush.  (Mass.)  539 324 

138  Mo.  293,  39  S.  W.  763 148 

62  X.  Y.  99 102 

122  X.  C.  972,  30  S.  E.  8 408 

Bradshaw  v.  Railway  Co.,  L.  R.  10  C.  P.  189,  44  Law  J.  C.  P.  148,  31  Law 

T.  (X.  S.)  847 403 

135  Mass.  407 186,  198 

Brad  well  v.  Railway  Co.,  153  Pa.  St.  105,  25  Atl.  623 77 

Brady  v.  Railroad  Co.,  1  Hun  (X.  Y.)  378 346,  347 

Bramall  v.  Lees,  29  Law  T.  Ill 409 

Brann  v.  Railroad  Co.,  53  Iowa,  595,  6  N.  W.  5 91,  147 

Brannan  v.  Adams,  76  111.  331 79 

Brannen  v.  Gravel-Road  Co.,  115  Ind.  115,  17  X.  E.  202 59,  60 

Brannock  v.  Elmore,  114  Mo.  55,  21  S.  W.  451 42,  161,  162,  166 

Bransom's  Adm'r  v.  Labrot,  81  Ky.  638 306 

Brass  v.  Maitland,  6  El.  &  Bl.  470 369,  370 

Brazil  v.  Peterson,  44  Minn.  212,  46  X.  W.  331 171,  172 

Bream  v.  Brown,  5  Cold.  (Tenn.)  168 404 

Breckenf elder  v.  Railway  Co.,  79  Mich.  560,  44  X.  W.  957 408 

Breen  v.  Railroad  Co.,  50  Tex.  43 200 

Brehme  v.  Dinsmore,  25  Md.  328 238 

v.  Express  Co.,  25  Md.  328 257 

Brehmer  v.  Lyman  (Vt)  42  Atl.  613 50,  306 

Breig  v.  Railway  Co.,  98  Mich.  222,  57  X.  W.  118 121 


472  CASES  CITED. 

Page 

Brennan  v.  Railroad  Co.,  45  Conn.  284 73 

v.  Schreiner  (Super.  N.  Y.)  20  N.  Y.  Supp.  130 166 

Brent  v.  Haddon,  3  Cro.  Jac.  555 311 

Brevig  v.  Railway  Co.,  64  Minn.  168,  66  N.  W.  401 159,  191 

Brewer  v.  Railway  Co.,  97  Tenn.  015,  37  S.  W.  549 121 

Brezze  v.  Powers,  80  Mich.  172,  45  N.  W.  130 50 

Briant  v.  Railroad  Co.,  104  Mich.  307,  62  N.  W.  365 355,  359 

Brickell  v.  Railroad  Co.,  120  N.  Y.  290,  24  N.  E.  449 60 

Bricker  v.  Railroad  Co.,  132  Pa.  St.  1,  18  Atl.  983 195 

Briddon  v.  Railway  Co.,  28  L.  J.  Exch.  51 236 

Bridge  v.  Railroad  Co.,  3  Mees.  &  W.  244 35 

Bridger  v.  Railroad  Co.,  25  S.  C.  24 66 

27  S.  C.  456,  3  S.  E.  860 69 

Bridges  v.  Railway  Co.,  L.  R.  7  H.  L.  213. . 180 

Briegel  v.  City  of  Philadelphia,  135  Pa,  St.  451,  19  Atl.  1038 440 

Brien  v.  Bennett,  8  Car.  &  P.  724 177 

Briggs  v.  Railroad  Co.,  148  Mass.  72,  19  X.  E.  19 74 

72  ?J.  Y.  26 46 

Brigham  v.  Bussey,  26  La.  Ann.  676 386 

Brink  v.  Borough  of  Dunmore,  174  Pa.  St  395,  34  Atl.  598 426 

Brinkman  v.  Bender,  92  Ind.  234 86 

Brinkmeyer  v.  City  of  Evansville,  29  Ind.  187 45O 

Brintnall  v.  Railroad  Co.,  32  Vt  665 29G 

Briscoe  v.  Railway  Co.,  103  Ga.  224,  28  S.  E.  638 37 

Bristol  &  E.  Ry.  Co.  v.  Collins,  5  Hurl.  &  N.  969,  29  Law  J.  Exch.  41 295 

Britton  v.  Railroad  Co.,  88  N.  C.  536 '. 207 

Broadwell  v.  Swigert,  7  B.  Mon.  (Ky.)  39 37,  58 

Broburg  v.  City  of  Des  Moines,  63  Iowa,  523,  19  N.  W.  340 433 

Brock  v.  Copeland,  1  Esp.  203 362 

v.  Gale,  14  Fla.  523 270 

Brockway  v.  Express  Co.,  168  Mass.  257,  47  N.  E.  87 254 

v.  Patterson,  72  Mich.  122,  40  N.  W.  192 400 

Broderick  v.  Depot  Co.,  56  Mich.  261,  22  N.  W.  802 171 

v.  Railway  Co.  (Minn.)  77  N.  W.  28 109 

Brodeur  v.  Valley  Falls  Co.,  16  R,  I.  448,  17  Atl.  54 14» 

Bronson  v.  Railroad  Co.,  24  App.  Div.  262,  48  N.  Y.  Supp.  257 56 

v.  Town  of  Southbury,  37  Conn.  199 68 

Brooke  v.  Pickwick,  4  Bing.  218 256 

v.  Railroad  Co.,  15  Mich.  332 182 

Brooks  v.  Haslam,  65  Cal.  421,  4  Pac.  399 393 

v.  Inhabitants,  106  Mass.  271 447 

v.  Railroad  Co.,  135  Mass.  21 86 

Brossman  v.  Railroad  Co.,  113  Pa.  St.  490,  6  Atl.  226 HO 

Brown  v.  Bank  (N.  H.)  39  Atl.  336 32 

r.  Carpenter,  26  Vt.  638 361 

v.  City  of  Lowell,  8  Mete.  (Mass.)  172 438 

v.  City  of  Syracuse,  77  Hun,  411,  28  N.  Y.  Supp.  792 67 

v.  Engineering  Co.,  166  Mass.  75,  43  N.  E.  1118 158 

y.  Express  Co.,  15  W.  Va.  812 220,  239- 


CASES  CITED.  473 

Page 

Brown  v.  Green  (Del.  Super.)  42  Atl.  991 365 

v.  Harmon,  21  Barb.  (N.  Y.)  508 415 

v.  Harris,  2  Gray  (Mass.)  359 210 

v.  Kendall,  6  Cush.  (Mass.)  292 12 

v.  Lester,  13  Smedes  &  M.  (Miss.)  392 383 

v.  Marshall,  47  Mich.  576,  11  N.  W.  392 370 

v.  Railroad  Co.,  4  App.  Div.  465,  38  X.  Y.  Supp.  655 356 

11  Cush.  (Mass.)  97 198,  257 

4  Fed.  37 196 

7  Fed.  51,  65 186,  192,  195,  19<3 

51  Iowa,  235,  1  N.  W.  487 <, 185 

38  Kan.  634,  16  Pac.  942 188 

58  Me.  384   70 

49  Mich.  153,  13  N.  W.  494 2 

22  Minn.  165 39,  330 

31  Minn.  553,  18  N.  W.  834 141,  149 

64  Mo.  536   196 

66  Mo.  588 186 

18  Mo.  App.  569 262 

54  N.  H.  535   288 

22  N.  Y.   191    397 

32  N.  Y.  597    325 

19  S.  C.  39   358 

40  U.  C.  Q.  B.  333 189 

16  Wash.  465,  47  Pac.  890 202 

54  Wis.  342,  11  N.  W.  356 40 

77  X.  W.  (Wis.)  748 401 

v.  Smith,  86  Ga.  274,  12  S.  E.  411 156 

v.  Society,  47  Me.  275 304 

Browning  v.  Board,  44  Ind.  11,  13 441,  445 

v.  City  of  Springfield,  17  111.  143 432 

v.  Hanford,  5  Hill  (N.  Y.)  588,  591 385 

v.  Railway  Co.,  2  Daly  (X.  Y.)  117 251 

124  Mo.  55,  27  S.  W.  644 151 

Bruker  v.  Town  of  Covington,  69  Ind.  33 44 

Brulard  v.  The  Alvin,  45  Fed.  766 179 

Brunner  v.  Telegraph  Co.,  151  Pa.  St.  447,  25  Atl.  29 174 

Brunswick-Balke-Collender  Co.  v.  Rees,  69  Wis.  442,  34  N.  W.  732 312 

Brunswick  Gaslight  Co.  v.  Brunswick  Village  Corp.,  92  Me.  493,  43  Atl. 

104    444 

Brunswig  v.  White,  70  Tex.  504,  8  S.  W.  85 409 

Brusch  v.  Railway  Co.,  52  Minn.  512,  55  N.  W.  57 205 

Bruty  v.  Railway  Co.,  32  U.  C.  Q.  B.  66 269 

Bryan  v.  Fowler,  70  N.  C.  596 349 

Bryant  v.  City  of  St.  Paul,  33  Minn.  289,  23  N.  W.  220 453 

v.  Inhabitants,  86  Me.  450,  29  Atl.  1109 443 

v.  Railroad  Co.,  56  Vt.  710 100 

46  S.  W.  (Tex.  Civ.  App.)  82 59 

v.  Rich,  106  Mass.  180 170 


474  CASES  CITED. 

Pa?e 

Brydon  v.  Stewart,  2  Macq.  30 93 

Buckalew  v.  Railroad  Co.,  112  Ala.  146,  20  South.  GOG 145 

Buckingham  v.  Vincent,  23  App.  Div.  238,  48  N.  Y.  Supp.  747 156 

v.  Water  Co.,  142  Pa.  St.  221,  21  Atl.  824 , 370 

Buckland  v.  Express  Co.,  97  Mass.  124 215,  292 

2  Redf .  Am.  Ry.  Gas.  46 280 

Buckley  v.  Cunningham,  103  Ala.  449,  15  South.  826 315 

v.  Gee,  55  111.  App.  388 365 

y.  Leonard,  4  Demo  (N.  Y.)  500 364 

v.  Mfg.  Co.,  41  Hun  (N.  Y.)  450 119 

v.  Railroad  Co.,  161  Mass.  26,  36  N.  E.  583 179 

18  Mich.  121   287 

Buckman  v.  Levi,  3  Camp.  414 281 

Budd  v.  Railroad  Co.,  69  Conn.  272,  37  Atl.  683 416 

Buddy  v.  Railway  Co.,  20  Mo.  App.  206 288 

Buel  v.  Railroad  Co.,  31  N.  Y.  314. .'. 41 

Buenemann  v.  Railway  Co.,  32  Minn.  390,  20  N.  W.  379 208 

Bueschirig  v.  Gaslight  Co.,  73  Mo.  219 418 

Buffett  v.  Railroad  Co.,  40  N.  Y.  168 182 

Bulkley  v.  Cotton  Co.,  24  How.  386 227 

v.  Railroad  Co.,  27  Conn.  479: 343 

Bundschuh  v.  Mayer,  81  Hun,  111,  30  N.  Y.  Supp.  622 363 

Bunnell  v.  Bridge  Co.,  66  Conn.  24,  33  Atl.  533 43 

v.  Railway  Co.,  29  Minn.  305,  13  N.  W.  129 98 

13  Utah,  314,  44  Pac.  927 348 

Bunting  v.  Railroad  Co.,  16  Nev.  277 35 

Burch  v.  Hardwicke,  30  Grat.  (Va.)  24 443 

v.  Railroad  Co.,  3  App.  D.  C.  346 185 

Burdick  v.  Cheadle,  26  Ohio  St.  393 314,  316,  317 

Burgess  v.  Gray,  1  Man.  G.  &  S.  578 161 

Burke  v.  De  Castro,  11  Hun  (N.  Y.)  354 156,  157 

v.  Ireland,  26  App.  Div.  487,  50  N.  Y.  Supp.  369 162 

v.  Railroad  Co.,  49  Barb.  (N.  Y.)  529 63 

7  Heisk.  (Tenn.)  451 359 

51  Mo.  App.  491 187 

v.  Refining  Co.,  11  Hun  (N.  Y.)  354 128 

Burlington  &  M.  R.  Co.  v.  Crockett,  17  Neb.  570,  24  N.  W.  219 416 

19  Neb.  138,  26  N.  W.  921 98,  148 

24  Am.  &  Eng.  R.  Cas.  390 98 

v.  Westover,  4  Neb.  268 353,  357 

Burnell  v.  Railroad  Co.,  45  N.  Y.  184 289 

87  Wis.  387,  58  N.  W.  772 109 

Burnham  v.  City  of  Boston,  10  Allen  (Mass.)  290 435 

v.  Jackson,  1  Colo.  App.  237,  28  Pac.  250 377 

v.  Railroad  Co.,  63  Me.  298 185,  198 

Burns  v.  Railroad  Co.,  4  App.  Div.  426,  38  X.  Y.  Supp.  856 169 

69  Iowa,  450,  30  N.  W.  25 92 

101  Mass.  50 82,  211 

V.  Bennett,  44  Pac.  1068 146 


CASES  CITED.  475 

Page 

Burns  v.  Steamship  Co.,  84  Ga.  709,  11  S.  E.  493 112 

Buroughes  v.  Bayne,  5  Hurl.  &  N.  296 297 

Burroughs  v.  Railroad  Co.,  15  Conn.  124 353,  354 

100  Mass.  2U 294,  295 

Burrows  v.  Coke  Co.,  L.  R.  5  Exch.  Cas.  67 54 

Burtis  v.  Railroad  Co.,  24  N.  Y.  269,  272 291 

Burton  v.  Railroad  Co.,  82  N.  C.  504 407 

Burud  v.  Railroad  Co.,  62  Minn.  243,  64  N.  W.  562 337 

Burwell  v.  Railroad  Co.,  94  N.  C.  451 223 

Bus^h  v.  Railroad  Co.,  29  Hun  (N.  Y.)  112 57 

Bush  v.  Brainard,  1  Cow.  (N.  Y.)  78 309,  310 

v.  Steinman  (1799)  1  Bos.  &  P.  404 174 

v.  Wathen  (Ky.)  47  S.  W.  590,  599 362,  365 

Bussruan  v.  Transit  Co.,  9  Misc.  Rep.  410,  29  N.  Y.  Supp.  1066 182 

Butler  v.  Heane,  2  Camp.  415 256 

v.  Hunter,  7  Hurl.  &  N.  826 166 

v.  Railroad  Co.,  3  E.  D.  Smith  (N.  Y.)  571 272 

58  N.  Y.  Supp.  (Sup.)  1061 "...     95 

Button  v.  Railroad  Co.,  18  N.  Y.  248 51,  83 

Buttrick  v.  City  of  Lowell,  1  Allen  (Mass.)  172 444 

Bute  v.  Cavanaugh,  137  Mo.  503,  38  S.  W.  1104 49,  309 

Buxton  v.  Railroad  Co.,  L.  R.  3  Q.  B.  549 206,  341 

Buzzell  v.  Mfg.  Co.,  48  Me.  113 93,  94,  117,  120 

Byerly  v.  City  of  Anamosa,  79  Iowa,  204,  44  N.  W.  359 432 

Byrne  v.  Morel  (Ky.)  49  S.  W.  193 '. 364 

v.  Railroad  Co.,  9  C.  C.  A,  666,  61  Fed.  605 157 

83  N.  Y.  620 .- 67 

104  N.  Y.  362,  10  N.  E.  539 49,  327 

Byrnes  v.  Palmer,  18  App.  Div.  1,  45  N.  Y.  Supp.  479 374 


C 

Cable  v.  Railway  Co.,  122  N.  0.  892,  29  &  E.  377 181 

Cadden  v.  Barge  Co.,  88  Wis.  409,  60  N.  W.  800 151 

Cadwallader  v.  Railroad  Co.,  9  L.  C.  169 270 

Cahill  v.  Hilton,  106  N.  Y.  512,  13  N.  E.  339 123 

v.  Railway  Co.,  13  C.  B.  (N.  S.)  818 273 

Cairncross  Y.  Village  of  Pewaukee,  86  Wis.  181,  56  N.  W.  648 19 

Cairns  v.  Robins,  8  Mees.  &  W.  258 2S8 

Calderon  v.  Steamship  Co.,  16  C.  C.  A.  332,  69  Fed.  574 250 

Caldwell  v.  Brown,  53  Pa.  St.  453 409,  410 

v.  Hunter,  10  Q.  B.  69,  83 371 

v.  Railroad  Co.,  58  Mo.  App.  453 332 

v.  Steamboat  Co.,  47  N.  Y.  282 29,  204 

Caledonia,  The,  157  U.  S.  124,  15  Sup.  Ct  537 235 

Callahan  v.  Bean,  9  Allen  (Mass.)  401 66 

v.  Loughran,  102  Cal.  476,  36  Pac.  835 313,  315,  317 

V.  Warne,  40  Mo.  131 369 


476  CASES  CITED. 

Pa?e 

Callan  v.  Bull,  113  Cal.  593,  45  Pac.  1017 93 

Callanan  v.  Oilman,  107  N.  Y.  360,  14  N.  E.  264 435 

Callaway  v.  Sturgeon,  58  111.  App.  159 358 

Callender  v.  Marsh,  1  Pick.  (Mass.)  418,  431 438,  439,  442 

Calumet  Electric  St.  Ry.  Co.  v.  Van  Pelt,  68  111.  App.  582 08 

Calvo  v.  Railroad  Co.,  23  S.  C.  526 140 

Calwell  v.  City  of  Boone,  51  Iowa,  687,  2  N.  W.  614 443 

Camden  &  A.  R.  Co.  v.  Baldauf,  16  Pa.  St.  67 230 

.    v.  Forsyth,  61  Pa.  St.  81 292,  294 

Cameron  v.  Express  Co.,  48  Mo.  App.  99 174 

Camp  v.  Hall,  39  Fla.  535,  22  South.  792 158 

v.  Steamboat  Co.,  43  Conn.  333 238 

v.  Wood,  76  N.  Y.  92 304 

Campbel  v.  Morse,  1  Harp.  (S.  C.)  468 222 

Campbell  v.  Boyd,  88  N.  C.  129 50 

v.  City  of  Stillwater,  32  Minn.  308,  20  N.  W.  320 11 

v.  Harris,  4  Tex.  Civ.  App.  636,  23  S.  W.  35 128 

v.  Mullen,  60  111.  App.  497 82 

y.  Railroad  Co.  (Pa.)  2  Atl.  489 93 

59  Mo.  App.  151,  1  Mo.  App.  Rep'r,  3 344 

Campbell's  Adm'r  v.  Railroad  Co.  (Va.)  21  S.  E.  480 331 

Campbell's  Adm'x  v.  Council,  53  Ala.  527 452 

Candee  v.  Railroad  Co.,  21  Wis.  582,  589 182,  206,  292,  293 

Candiff  v.  Railway  Co.,  42  La.  Ann.  477,  7  South.  601 172 

Canefox  v.  Crenshaw,  24  Mo.  199. 361 

Canning  v.  Railway  Co.  (Sup.)  50  N.  Y.  Supp.  506 394 

Cannon  v.  Lewis,  18  Mont.  402,  45  Pac.  572 42 

Cantling  v.  Railroad  Co.,  54  Mo.  385 256,  271 

Cantu  v.  Bennett,  39  Tex.  303 253 

Cantwell  v.  Express  Co.,  58  Ark.  487,  25  S.  W.  503 237 

Capehart  v.  Railroad  Co.,  77  N.  C.  355;   81  N.  C.  438 251 

Card  v.  Eddy,  129  Mo.  510,  28  S.  W.  753,  979 148 

Carey  v.  Railroad  Co.,  1  Gush.  (Mass.)  475 391 

Carletoii  v.  Steel  Co.,  99  Mass.  216 304 

Carlile  v.  Parkins,  3  Starkie,  163 384 

Carlisle  v.  Town  of  Sheldon,  38  Vt.  440 61 

Carlson  v.  Railway  Co.,  21  Or.  450,  28  Pac.  497 149 

v.  Stocking,  91  Wis.  432,  65  N.  W.  58 166 

v.  Telephone  Exch.  Co.,  63  Minn.  428,  65  N.  W.  914 105,  106 

Carman  v.  Railroad  Co.,  4  Ohio  St.  399 158,  167,  446,  447 

Carmer  v.  Railway  Co.,  95  Wis.  513,  70  N.  W.  560 336 

Carpenter  v.  Blake,  60  Barb.  (X.  Y.)  488 376-378 

v.  City  of  Cohoes,  81  N.  Y.  21 4,  445 

v.  Railroad  Co.,  97  N.  Y.  494 la3,  324 

Carr  v.  Northern  Liberties,  35  Pa.  St.  324 429 

v.  Railway  Co.,  7  Exch.  707 238 

v.  Schafer,  15  Colo.  48,  24  Pac.  873 223 

Carrico  v.  Railway  Co.,  35  W.  Va.  389,  14  S.  E.  12 202 

39  W.  Va.  86,  19  S.  E.  571 .   104 


CASES  CITED.  477 

Page 

Carrington  v.  Railroad  Co.,  88  Ala.  472,  6  South.  910 3G 

Carroll  v.  Railroad  Co.,  13  Minn.  30  (Gil.  18) 7,  36,  52 

88  Mo.  239 212,  414,  392 

58  N.  Y.  126 29,  189,  204 

v.  Telegraph  Co.,  160  Mass.  152,  35  N.  E.  456 93 

Carr's  Ex'x  v.  Glover,  70  Mo.  App.  242 374 

Carson  v.  Railway  Co.,  96  Iowa,  583,  65  N.  TV.  831 69 

Carstesen  v.  Town  of  Stratford,  67  Conn.  428,  35  Atl.  276 437 

Carter  v.  Peck,  4  Sneed  (Tenn.)  203 182,  293,  295 

v.  Railroad  Co.,  42  Fed.  37 203 

19  S.  C.  20,  24 3 

v.  Towoe,  103  Mass.  507 19 

Cary  v.  Railroad  Co.,  29  Barb.  35 182 

Case  v.  Minot,  158  Mass.  577,  33  N.  E.  700 316 

v.  Railroad  Co.,  59  Barb.  (N.  Y.)  644 357 

75  Mo.  668 345 

59  X.  J.  Law,  471,  37  Atl.  65 348 

Casey  v.  Railroad  Co.,  6  Abb.  N.  C.  (N.  Y.)  104 67 

v.  Smith,  152  Mass.  294,  25  N.  E.  734 70 

Cassady  v.  Magher,  85  Ind.  228 78 

Cassedy  v.  Stockbridge,  21  Vt.  391 76,  77 

Cassidy  v.  Angell,  12  R.  I.  447 84 

v.  Railroad  Co.,  9  Misc.  Rep.  275,  29  N.  Y.  Supp.  724 205 

Castello  v.  Landwehr,  28  Wis.  522 407 

Castile  v.  Ford,  53  Neb.  507,  73  N.  W.  945 383 

Castle  v.  Duryee,  41  N.  Y.  169,  32  Barb.  (N.  Y.)  480 367 

Catawissa  R.  Co.  v.  Armstrong,  49  Pa.  St.  186 36,  37,  128-130,  211 

52  Pa.  St.  282 407,  414 

Cates  v.  Itner,  104  Ga.  679,  30  S.  E.  884 146 

Caton  v.  City  of  Sedalia,  62  Mo.  App.  227 436 

Cattaraugus  Cutlery  Co.  v.  Railroad  Co.,  24  App.  Div.  267,  48  N.  Y.  Supp. 

451     273 

Caulkins  v.  Mathews,  5  Kan.  191 80 

Cavanagh  v.  City  of  Boston,  139  Mass.  426,  1  N.  E.  834 444 

v.  Dinsmore,  12  Hun,  465 173 

Caverly  v.  McOwen,  123  Mass.  574 374 

Cawfield  v.  Railway  Co.,  Ill  N.  C.  597,  16  S.  E.  703 205 

Cawley  v.  Railway  Co.,  101  Wis.  145,  77  N.  W.  179 323 

€ayf ord  v.  Wilbur,  86  Me.  414,  29  Atl.  1117 376 

Cayzer  v.  Taylor,  10  Gray  (Mass.)  274 2,  54 

Central  Pass.  Ry.  Co.  v.  Kuhn,  86  Ky.  578,  6  S.  W.  441 207 

Central  R.  Co.  v.  Bryant,  73  Ga.  722,  726 238 

v.  Crosby,  74  Ga.  737 414 

v.  De  Bray,  71  Ga.  406 146 

v.  Feller,  H4  Pa.  St.  226 74,  336 

v.  Freeman,  66  Ga.  170 86 

v.  Green,  86  Pa.  St.  427 19"» 

v.  Hubbard,  86  Ga.  623,  12  S.  E.  1020 40 

V.  Peacock,  69  Md.  257,  14  Atl.  709 l\2 


478  CASES  CITED. 

Page 

Central  R.  Co.  v.  Rouse,  77  Ga,  393,  3  S.  E.  307 412,  418 

v.  Sears,  66  Ga.  499 413. 

v.  Smalley  (N.  J.  Err.  &  App.)  39  Atl.  695 331,  335 

v.  Thompson,  70  Ga,  770 394 

Central  R.  Co.  of  New  Jersey  v.  Keegan,  160  U.  S.  259,  16  Sup.  Ct  269.. .     l»5 

v.  Van  Horn,  38  N.  J.  Law,  133 180 

Central  Railroad  &  Banking  Co.  v.  Bayer,  91  Ga.  115,  16  S.  E.  953 296 

v.  Brantley,  93  Ga.  259,  20  S.  E.  98 152 

v.  Chapman,  96  Ga.  769,  22  S.  E.  273 Ill 

v.  Georgia.  Fruit  &  Vegetable  Exchange,  91  Ga.  389,  17  S.  E.  904. .  .292,  293 

v.  Kitchens,  83  Ga.  83,  9  S.  E.  827 394 

v.  Newman,  94  Ga.  560,  21  S.  E.  219 35,  52 

v.  Phillips,  91  Ga.  526,  17  S.  E.  952 67 

v.  Phinazee,  93  Ga.  488,  21  S.  E.  66 ; .     77 

v.  Roach,  64  Ga.  635 100- 

v.  Ryles,  84  Ga.  420,  11  S.  E.  499. .: 104 

Central  Texas  &  N.  W.  Ry.  Co.  v.  Bush.  12  Tex.  Civ.  App.  291,  34  S.  W.  133    85 

v.  Nycum  (Tex.  Civ.  App.)  34  S.  W.  460 338 

Central  Trust  Co.  v.  Railway  Co.,  26  Fed.  896 44 

31  Fed.  246 60 

65  Fed.  332 % 199 

Central  Vermont  R.  Co.  v.  Soper,  8  C.  C.  A.  34i,  59  Fed.  879 251 

Cerrillos  Coal  R.  Co.  v.  Deserant  (N.  M.)  49  Pac.  807 148,  40.> 

Chaddock  v.  Tabor,  115  Mich.  27,  72  N.  W.  1093 367 

Chaffee  v.  Railroad  Co.,  104  Mass.  108 333. 

35  Atl.  (R.  I.)  47. 339 

Chamberlain  v.  Car  Co.,  55  Mo.  App.  474 278 

v.  Railway  Co.,  133  Mo.  587,  33  S.  W.  437,  34  S.  W.  842 330 

11  Wis.  238  188 

Chandler  v.  City  of  Bay  St.  Louis,  57  Miss.  327 451 

v.  Fremont  Co.,  42  Iowa,  58 456 

Chant  v.  Railway  Co.,  Wkly.  Notes  (Eng.)  1866,  p.  134 408,  409 

Chapin  v.  Railway  Co.,  79  Iowa,  582,  44  N.  W.  820 227 

Chapman  v.  Railroad  Co.,  19  N.  Y.  341 25,  57,  59 

v.  Reddick  (Fla.)  25  South.  673 385 

v.  Rothwell,  El.,  Bl.  &  El.  168 304 

Chappell  v.  Gregory,  34  Beav.  250 315 

Charlebois  v.  Railroad  Co.,  91  Mich.  59,  51  N.  W.  812 161,  415 

Charles  v.  Taylor,  3  C.  P.  Div.  492 129 

Chase  v.  City  of  Cleveland,  44  Ohio  St.  505,  9  N.  E.  225 434 

v.  City  of  Lowell,  151  Mass.  422,  24  N.  E.  212 436 

v.  Heaney,  70  111.  268 374,  388 

v.  Railroad  Co.,  24  Barb.  (N.  Y.)  273 39,  53 

Chataigne  v.  Bergeron,  10  La.  Ann.  699 367 

Chattanooga,  R.  &  C.  R.  Co.  v.  Liddell,  85  Ga.  482,  11  S.  E.  853 209 

Chattanooga  S.  R.  Co.  v.  Daniel  (Ala.)  25  South.  197 344 

Chattock  v.  Bellamy,  15  Reports,  340 215 

Cheaney  v.  Hooser,  9  B.  Mon.  (Ky.)  330 424 

Cheeney  v.  Town  of  Brookfield,  60  Mo.  53 444 


CASES  CITED.  479 

Page 

Cheesman  v.  Exall,  6  Exch.  341 297 

Cheetham  v.  Hampson,  4  Term   R.  318 161,  .311 

Cheney  v.  Railroad  Co.,  16  Hun  (N.  Y.)  415 324,  326 

11  Mete.  (Mass.)  121 185,  200 

Chenowith  v.  Chamberliu,  6  B.  Mon.  (Ky.)  60 38& 

Cherokee  &  P.  Coal  &  Mining  Co.  v.  Limb,  47  Kan.  469,  28  Pac.  181 410 

Cherry  v.  Railroad  Co.,  1  Mo.  App.  Rep'r,  253 182 

Chesapeake,  O.  &  S.  W.  R.  Co.  v.  McDowell  (Ky.)  24  S.  W.  607 120 

Chesapeake  &  O.  R.  Co.  v.  Radbourne,  52  111.  App.  203 295 

v.  Smith  (Ky.)  39  S.  W.  832 86- 

v.  Steele,  29  C.  C.  A.  81,  84  Fed.  93 340 

v.  Yost  (Ky.)  29  S.  W.  326 5,  6 

Chicago,  B.  &  Q.  R.  Co.  v.  Bond  (Neb.)  78  N.  W.  710 416 

v.  Damerell,  81  111.  450 340 

v.  Dougherty,  110  111.  521 328 

12  111.  App.   181 326 

V.  Eggnwu,  59  111.  App.  680 120 

v.  Gardiner,  51  Neb.  70,  70  N.  W.  508 254 

v.  Grabliu,  38  Neb.  90,  56  N.  W.  796 67 

v.  Gregory,  58  111.  272 418 

v.  Griffin,  68  111.  499 198 

v.  Gunderson,  74  111.  App.  356 41 

v.  Harwood,  80  111.  88 340,  414 

90  111.  425 328 

v.  Hazzard,   26   111.  373 205 

v.  Howard,  45  Neb.  570,  63  N.  W.  872 148 

v.  Iowa,  94  U.  S.  155 20O 

v.  Johnson,  103  111.  512,  521  3 

53  111.  App.  478 329 

v.  Kellogg,  54  Neb.  127,  74  N.  W.  454 148 

v.  Landauer,  36  Neb.  642,  54  N.  W.  976 205 

v.  Lee,  87  111.  4r,4 , 326 

v.  Levy,  160  111.  385,  43  N.  E.  357 : 81 

v.  McGinnis,  49  Neb.  649,  68  N.  W.  1057 116 

v.  Manning,  23  Neb.  552,  37  N.  W.  462 220 

v.  Mehlsack,  131  111.  61,  22  N.  E.  812 195 

v.  Oyster  (Neb.)  78  N.  W.  359 91,  102,  416 

v.  Spring,  13  111.  App.  174 334 

v.  Thorson,  68  HI.  App.  288 33O 

v.  Triplett,  38  111.  482 75,  394 

v.  Van  Buskirk  (Neb.)  78  N.  W.  514 416 

v.  Yorty,  158  111.  321,  42  N.  E.  64 324 

Chicago  City  v.  Robbins,  2  Black,  418 425 

Chicago  City  Ry.  Co.  v.  Dinsmore,  162  111.  658,  44  N.  E.  887 32 

v.  Gillam,  27  111.  App.  386 •. 405 

v.  Pelletier,  134  111.  120,  24  N.  E.  770 183,  197 

v.  AVilcox,  138  111.  370,  27  N.  E.  899 62,  66,  71 

Chicago  Economic  Fuel  Gas  Co.  v.  Myers,  168  111.  139,  48  N.  E.  66 161 

Chicago,  K.  &  W.  R.  Co.  v.  Frazer,  55  Kan.  582,  .40  Pac.  923 178 


480  CASES  CITED. 

Page 

Chicago  League  Ball  Club  v.  City  of  Chicago,  77  111.  App.  121 > 452 

Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Dowd,  115  111.  G59,  4  N.  W.  308 414 

v.  Minnesota,  134  U.  S.  418,  10  Sup.  Ct.  4.62,  702 201 

v.  Ross,  112  U.  S.  377,  5  Sup.  Ct.  184 127,  132-,  142 

v.  Walsh,  157  111.  672,  41  N.  E.  900 32,  338 

v.  West,  125  111.  320,  17  N.  E.  788 129 

Chicago,  P.  &  St.  L.  Ry.  Co.  v.  Lewis,  145  111.  67,  33  N.  E.  900 202,  205 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Austin,   69   111.   426 407 

v.  Bell,  70  111.  102 76 

v.  Boyce,  73  111.  510 271 

v.  Collins,  56  111.  212 269 

v.  Fairclough,  52  111.  106 275,  289 

v.  Harmon,  12  111.  App.  54 202 

v.  Hinds,  56  Ivan.  758,  44  Pac.  993 340 

v.  Houston,  95  U.  S.  697 330 

v.  Kennedy,  2  Kan.  App.  693,  43  Pac.  802 338 

v.  McBride,  54  Kan.  172,  37  Pac.  978 15,  352 

v.  Martin,  59  Kan.  437,  53  Pac.  461 205 

v.  Ohlsson,  70  111.  App.  487 326,  336 

v.  Pounds,  27  C.  C.  A.  112,  82  Fed.  217 336 

v.  Sutton,  11  C.  C.  A.  251,  63  Fed.  394 20,  25,  26 

v.  Williams,  59  Kan.  700,  54  Pac.  1047 335 

v.  Witty,  32  Neb.  275,  49  N.  W.  183 239 

v.  Young  (Neb.)  79  N.  W.  556 403 

Chicago,  R.  I.  &  T.  R.  Co.  v.  Boyles,  11  Tex.  Civ.  App.  522,  33  S.  W.  247. ..  205 

Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Abels,  60  Miss.  1017 220,  239,  249,  251 

v.  Moss,  60  Miss.  1003 220 

Chicago,  St.  L.  &  P.  R.  Co.  v.  Holdridge,  118  Ind.  281,  20  N.  E.  837 199 

v.  Williams,  131  Ind.  30,  30  N.  E.  696 15 

v.  Wolcott,  141  Ind.  267,  39  N.  E.  451 293 

Chicago,  St  P.,  M.  &  O.  Ry.  Co.  v.  Brady,  51  Neb.  758,  71  N.  W.  721 328 

v.  Lundstrom,  16  Neb.  254,  20  N.  W.,200 148 

Chicago,  St.  P.  &'  K.  C.  R.  Co.  v.  Ryan,  62  111.  App.  264 32 

Chicago  &  A.  R.  Co.  v.  Addizoat,  17  111.  App.  632 289 

v.  Adler,  28  111.  App.  102 411 

v.  Anderson,  166  111.  572,  46  N.  E.  1125 51 

v.  Arnol,  144  111.  261,  33  N.  E.  204 181,  205 

v.  Becker,  76  111.  25 414 

84  111.  483 336,  409 

V.  Blaul,  175  111.  183,  51  N.  E.  895 S40 

70  111.  App.  518 333 

v.  Byrum,  153  111.  131,  38  N.  E.  578 74,  202 

v.  Carey,  115  111.  115,  3  N.  E.  519 418 

v.  Davis,  159  111.  53,  42  N.  E.  382 222,  223 

v,  Dillon,  «123  111.  570,  15  N.  E.  181 326 

v.  Dumser,  161  111.  190,  43  N.  E.  698 182 

v.  Fears,  53  111.  115 332 

v.  Fietsam,  123  111.  518,  15  N.  E.  169 394 

v.  Glenny,  70  111.  App.  510 .  356 


CASES  CITED.  481 

Page 

Chicago  &  A.  R.  Co.  v.  Gregory,  58  111.  226 21,  64 

v.  Grimes,  71  111.  App.  397 236 

v.  House,  172  111.  601,  50  N.  E.  151 135 

v.  Johnson,  116  111.  206,  4  N.  E.  381 110 

v.  Kelly,  127  111.  637,  21  N.  E.  203 130 

75  111.  App.  490 81 

v.  Maroney,  170  111.  520,  48  N.  E.  953 90 

v.  May,  108  111.  288,  300 133,  136,  407 

v.  Means,  48  111.  App.  396 74 

v.  Michie,  83  111.  427 46,  195 

v.  O'Bi-ien,  155  111.  630,  40  N.  E.  1023 128,  134,  135 

v.  O'Xeil,  64  111.  App.  623 325 

v.  Pennetl,  110  111.  435 357 

v.  Pillsbury,  123  111.  9,  14  N.  E.  22 207 

v.  Randolph,  65  111.  App.  208 183 

v.  Redmond,  70  111.  App.  119 333 

V.  Robinson,  106  111.  142 328 

9  111.  App.  89 326 

v.  Scott,  42  111.  132 288 

v.  Shannon,  43  111.  388 411,  414,  415 

v.  Simms,  18  111.  App.  68 251 

v.  Smith,  77  111.  App.  492 416 

v.  Swan,  70  111.  App.  331 135 

v.  Thompson,  19  111.  578 230,  231 

v.  Thrapp,  5  111.  App.  502 237 

v.  Utley,  38  111.  410 346 

v.  Winters,  175  111.  293,  51  N.  E.  901 179,  191 

Chicago  &  E.  1.  R.  Co.  v.  Blair,  75  111.  App.  659 347 

v.  Boggs,  101  Ind.  522 327,  328 

v.  Chancellor,  60  111.  App.  525 176,  177 

v.  Garner,  78  111.  App.  281 91 

v.  Maloney,  77  111.  App.  191 109 

v.  Roberts,  44  111.  App.  179 39 

Chicago  &  E.  R.  Co.  v.  Bailey,  19  Ind.  App.  163,  46  N.  E.  688 356 

v.  Luddington,  10  Ind.  App.  636,  38  N.  E.  342 15,  352.  354. 

Chicago  &  G.  E.  Ry.  Co.  v.  Harney,  28  Ind.  28 63,  97 

Chicago  &  G.  T.  Ry.  Co.  v.  Kinnare,  76  111.  App.  394 40 

v.  Stewart,  77  111.  App.  66 208 

Chicago  &  G.  W.  Ry.  Co.  v.  Armstrong,  62  111.  App.  228 91 

Chicago  &  N.  E.  Ry.  Co.  v.  Miller,  46  Mich.  532,  9  N.  W.  841 74,  328 

Chicago  &  N.  R.  Co.  v.  Donahue,  75  111.  106 39 

v.  Merrill.  48  111.  425 284 

Chicago  &  N.  W.  R.  Co.  v.  Barrie,  55  111.  226 342,  344,  345 

v.  Bayfield,  37  Mich.  205,  210 123,  127,  137,  410,  412 

T.  Carroll,  5  111.  App.  201 193 

12  111.  App.  643 14 

v.  Chapman,  30  111.  App.  504 5 

v.  Fillmore,  57  111.  265 208 

v.  Gillison,  173  111.  264,  50  N.  E.  657 151 

BAR.NEG.-31 


482  CASES  CITED. 

Page 

Chicago  &  N.  W.  R.  Co.  v.  Hansen,  16G  111.  623,  40  X.  E.  1071 * 335 

v.  Harris,  54  111.  528 346 

v.  Howard,  6  111.  App.  509 412 

v.  Jackson,  55  111.  492 90 

v.  Kane,  50  111.  App.  100 109 

v.  Moranda,  93  111.  302 412 

108   111.   576 134,  133 

v.  Northern  Line  Packet  Co.,  70  111.  217. ...    295 

v.  People,  56  111.  365 295 

v.  Prescott,  8  C.  C.  A.  109,  59  Fed.  237 IS 

v.  Sawyer,  69  IU.  285 227 

v.  Simon,  160  111.  648,  43  N.  E.  596 248,  256 

v.  Smedley,  65  111.  App.  644 343 

v.  Snyder,  117  111.  376,  7  N.  E.  604 130,  152 

v.  Swett,  45  111.  197 90,  94,  97,  414,  415 

v.  Taylor,  69  111.  461 102 

v.  Tuite,  44  111.  App.  535 135 

v.  Ward,  61  111.  130 Ill 

v.  Whitton's  Adm'r,  13  Wall.  270 405,  408,  414 

v.  Williams,  55  111.  185 195,  190 

Chicago  &  R.  I.  R.  Co.  v.  Fahey,  52  111.  81 182 

v.  McKean,  40  IU.  218 76,  330 

v.  Morris,  26  111.  400 403,  416 

Chicago  &  W.  I.  R.  Co.  v.  Flynn,  154  111.  448,  40  N.  E.  332;  54  111.  App.  387  103 

v.  Schroeder,  18  111.  App.  328 415 

Chickering  v.  Fowler,  4  Pick.  (Mass.)  371 282,  284,  286 

Chielinsky  v.  Hoopes  &  Townsend  Co.,  1  Marv.  273,  40  Atl.  1127 107,  116 

Child  v.  City  of  Boston,  4  Allen  (Mass.)  41 429,  431,  444 

v.  Hearn,  L.  R.  9  Exch.  183 27 

Childrey  T.  City  of  Huntington,  34  W.  Va.  457, 12  S.  E.  536 IS 

Chiles  v.  Drake,  2  Mete.  (Ky.)  146,  154 367,  421 

Chilton  v.  City  of  St.  Joseph,  143  Mo.  192,  44  S.  W.  766 434 

Chittenden  v.  Crosby,  5  Kan.  App.  534,  48  Pac.  209 381 

Chitty  v.  Railway  Co.  (Mo.  Sup.)  49  S.  W.  868 41 

Chivers  v.  Rogers,  50  La.  Ann.  57,  23  South.  100 • 404 

Chouteaux  v.  Leech,  18  Pa.  St.  224 222,  223 

Christenson  v.  Express  Co.,  15  Minn.  270  (Gil.  208) 215.  237 

Christian  v.  Railway  Co.,  90  Ga.  124,  15  S.  E.  701 171 

Christie  v.  The  Craigton,  41  Fed.  62. '. 219 

v.  Griggs,  2  Camp.  79 202.  204 

Churchill  v.  Holt,  127  Mass.  165 54 

Churchman  v.  Tunstal,  Hardr.  162 455 

Church  of  the  Ascension  v.  Buckhart,  3  Hill  (N.  Y.)  193 302 

Cicero  &  P.  St.  Ry.  Co.  v.  Meixner,  160  111.  320,  43  N.  E.  823 81 

Cincinnati,  H.  &  D.  Ry.  Co.  v.  Nolan,  8  Ohio  Cir.  Ct.  R.  347 74 

v.  Spratt,  2  Duv.  (Ky.)  4 295 

v.  Waterson,  4  Ohio  St.  425 33 

Cincinnati,  H.  &  I.  R.  Co.  v.  Jones,  111  Ind.  259,  12  N.  E.  113 340 

Cincinnati,  L,  St.  L.  &  C.  R.  Co.  v.  Cooper,  120  Ind.  469,  22  N.  E.  340 183 


CASES  CITED.  483 

Page 

Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Barker,  94  Ky.  71,  21  S.  W.  347 15 

v.  Farra,  13  C.  C.  A.  602,  66  Fed.  496 337 

v.  N.  K.  Fairbanks  &  Co.,  33  C.  C.  A.  611,  90  Fed.  467 223,  291 

v.  Palmer,  98  Ky.  382,  33  S.  W.  199 147 

v.  Sampson's  Adm'r,  97  Ky.  65,  30  S.  W.  12 110 

v.  Vivion  (,Ky.)  41  S.  W.  580 202 

Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.'s  Receiver  v.  Webb  (Ky.)  46  S.  W.  11. . .  266 

Cincinnati  St.  Ry.  Co.  v.  Wright,  54  Ohio  St.  181,  43  N.  E.  688 60,  68 

Cincinnati,  S.  &  C.  R.  Co.  v.  Skillman,  39  Ohio  St  444 184 

Cincinnati  &  A.  L.  R.  Co.  v.  McCool,  26  Ind.  140 288 

Cincinnati  &  C.  A.  L.  R.  Co.  v.  Marcus,  38  111.  219 271 

Cincinnati  &  Z.  R.  Co.  v.  Smith,  22  Ohio  St.  227 342,  343 

Citizens'  Bank  v.  Howell,  8  Md.  530 387 

v.  Steamboat  Co.,  2  Story,  16,  Fed.  Gas.  No.  2,730 215 

Citizens'  Loan,  Fund  &  Savings  Ass'n  v.  Friedley,  123  Ind.  143,  23  N. 

E.   1075    373 

Citizens'  St.  R.  Co.  v.  Spahr,  7  Ind.  App.  23,  33  N.  E.  446 74 

v.  Sutton,  148  Ind.  169,  46  N.  E.  462 42 

Citron  v.  Bayley,  36  App.  Div.  .130,  55  N.  Y.  Supp.  382 303 

City  Council  of  Augusta  v.  Hudson,  88  Ga.  599,  15  S.  E.  678 431 

v.  Lombard,  99  Ga.  282,  25  S.  E.  772 430,  431 

City  of  Albany  v.  Cunliff,  2  Barb.  (N.  Y.)  190;   2  N.  Y.  165 4,  441 

v.  Railroad  Co.,  76  Hun,  136,  27  N.  Y.  Supp.  848 19 

City  of  Anderson  v.  East,  117  Ind.  126,  19  N.  E.  726 449-451 

v.  Hervey,  67  Ind.  420 86 

City  of  Atchison  v.  King,  9  Kan.  550 18,  21 

v.  Twine,  9  Kan.  350 416 

City  of  Aurora  v.  Love,  93  111.  521 429 

v.  Pulfer,  56  111.  270 449 

City  of  Beatrice  v.  Reid,  41  Xeb.  214,  59  N.  W.  770 164 

City  of  Belleville  v.  Hoffman,  74  111.  App.  503 426 

City  of  Bloomington  v.  Perdue,  99  111.  329 76 

City  of  Caldwell  v.  Prunelle,  57  Kan.  511,  46  Pac.  949 444 

City  of  Centralia  v.  Krouse,  64  111.  19 438 

City  of  Champaign  v.  White,  38  111.  App.  233 76 

v.  Cement  Co.,  178  111.  372,  53  X.  E.  68 452 

City  of  Chicago  v.  Gallagher,  44  111.  295 435 

v.  Hesing,  83  111.  204 409 

v.  Hoy,  75  111.  530 , 436 

v.  Joney,  60  111.  383 162,  441 

v.  Keefe,  114  111.  222,  2  N.  E.  267 409- 

v.  Kelly,  69  111.  475 445 

v.  Langlass,  52  111.  256,  66  111.  361 445 

v.  McCulloch,  10  111.  App.  459 '. .  413 

v.  McDonald,  57  111.  App.  250 435 

v.  McGiven,  78  111.  347 433 

v.  McGraw,  75  111.  566 442 

v.  Major,  18  111.  349 62,  400,  403,  405,  409 

v.  O'Brennan,  65  111.  160 312 


484  CASES  CITED. 

Page 

City  of  Chicago  v.  Richardson,  75  111.  App.  198 434 

v.  Robbins,  2  Black,  418,  4  Wall.  657 447 

v.  Scholten,  75  111.  468 409 

v.  Seben,  165  111.  371,  46  N.  E.  244 430,  432 

v.  Starr,  42  111.  174 12,  67 

v.  Turner,  80  111.  419 444 

v.  Wright,  69  111.  318 44M 

City  of  Cincinnati  v.  Penny,  21  Ohio  St.  499 438 

v.  Stone,  5  Ohio  St.  38 447 

City  of  Circleville  v.  Neuding,  41  Ohio  St.  465 446,  447 

City  of  Clay  Centre  v.  Jevons,  2  Kan.  App.  568,  44  Pac.  745 24 

City  of  Clinton  v.  Railroad  Co.,  24  Iowa,  455 424 

City  of  Dallas  v.  McAllister  (Tex.  Civ.  App.)  39  S.  W.  173 432 

City  of  Dayton  v.  Pease,  4  Ohio  St.  80 426,  441) 

City  of  Decatur  v.  Besten,  169  111.  340,  48  N.  E.  186 432 

City  of  Delphi  v.  Lowery,  74  Ind.  520 412 

City  of  Denver  v.  Capelli,  4  Colo.  25 429 

v.  Dunsmore,  7  Colo.  328,  3  Pac.  705 432,  456 

City  of  Detroit  v.  Beckman,  34  Mich.  125 449 

v.  Putnam,  45  Mich.  263,  7  N.  W.  815 42i> 

City  of  Evansville  v.  Decker,  84  Ind.  325 429 

v.  Senhenn,  151  Ind.  42,  47  N.  E.  634 70 

City  of  Ft.  Worth  v.  Crawford,  64  Tex.  202 450 

v.  Shero  (Tex.  Civ.  App.)  41  S.  W.  704 437 

City  of  Freeport  v.  Isbell,  83  111.  440 435,  449 

City  of  Galveston  v.  Barbour,  62  Tex.  172 406,  409 

v.  Posnainsky,  62  Tex.  118 425,  449 

City  of  Guthrie  v.  Swan,  5  Okl.  779,  51  Pac.  562 432 

City  of  Harrisburg  v.  Saylor,  87  Pa.  St.  216 447 

City  of  Helena  v.  Thompson,  29  Ark.  569 426 

City  of  Henderson  v.  Burke  (Ky.)  44  S.  W.  422 435 

City  of  Highlands  v.  Raine,  23  Colo.  295,  47  Pac.  283 434 

City  of  Hillsboro  v.  Jackson  (Tex.  Civ.  App.)  44  S.  W.  1010 85,  434 

City  of  Huntingburg  v.  First  (Ind.  App.)  43  N.  E.  17 82 

City  of  Independence  v.  Slack,  134  Mo.  66,  34  S.  W.  1094 161 

City  of  Ironton  v.  Kelley,  38  Ohio  St.  50 164 

City  of  Jacksonville  v.  Smith,  24  C.  C.  A.  97,  78  Fed.  292 432 

City  of  Jeffersonville  v.  McHenry  (Ind.  App.)  53  N.  E.  183 70 

City  of  Joliet  v.  Seward,  86  111.  402 55 

City  of  Kansas  City  v.  Brady,  52  Kan.  297,  34  Pac.  884 429,  430,  441 

City  of  Lafayette  v.  Spencer,  14  Ind.  399 438 

City  of  Lanark  v.  Dougherty,  153  111.  163,  38  N.  E.  892 81 

City  of  Lansing  v.  Toolan,  37  Mich.  152 430 

City  of  Lebanon  v.  McCoy,  12  Ind.  App.  500,  40  N.  E.  700 147,  152 

City  of  Lincoln,  The,  25  Fed.  835,  839 286 

City  of  Litchfield  v.  South  worth,  67  111.  App.  398 430 

City  of  Logansport  v.  Dick,  70  Ind.  65 447 

v.  Wright,  25  Ind.  513 42.'. 

City  of  Louisville  v.  Hegan  (Ky.)  49  S.  W.  532 438 

T.  Mill  Co.,  3  Bush    (Ky.)  416 438 


CASES  CITED.  485 

Page 

City  of  Lowell  v.  Spaulding,  4  Gusli.  (Mass.)  277 25,  312 

City  of  Lynchburg  v.  Wallace,  95  Va.  640,  29  S.  E.  675 434 

City  of  Mt.  Vernon  v.  Hoehn  (Ind.  App.)  53  N.  E.  654 436 

City  of  New  Bedford  v.  Inhabitants,  9  Allen  (Mass.)  207 444 

City  of  New  Orleans  v.  Kerr,  50  La.  Ann.  413,  23  South.  384 441 

City  of  North  Vernon  v.  Voegler,  103  Ind.  327,  2  N.  E.  821 43G 

City  of  Oklahoma  City  v.  Hill,  6  Okl.  114,  50  Pac.  242 441 

City  of  Ord  v.  Nash,  50  Neb.  335,  69  N.  W.  964 432 

City  of  Orlando  v.  Pragg,  31  Fla.  Ill,  12  South.  368 441,  444 

City  of  Paterson  v.  Society,  24  N.  J.  Law,  385 424 

City  of  Pekin  v.  McMahon,  154  111.  141,  39  N.  E.  484 62.  67,  306,  307 

v.  Newell,  26  111.  320 441,  445 

City  of  Peoria  v.  Adams,  72  111.  App.  662 18,  42,  429 

City  of  Peru  v.  Gleason,  91  Ind.  566 444,  449 

City  of  Petersburg  v.  Applegarth's  Adm'r,  28  Grat.  (Va.)  321 449 

City  of  Philadelphia  v.  Gilmartin,  71  Pa.  St.  140 431 

City  of  Pontiac  v.  Carter,  32  Mich.  164 451 

City  of  Quincy  v.  Jones,  76  111.  231 438.  439 

City  of  Reading  v.  Keppleman,  61  Pa.  St.  233 438 

City  of  Richmond  v.  Long's  Adm'rs,  17  Grat.  (Va)  375,  379 433,  453 

City  of  St.  Paul  v.  Seitz,  3  Minn.  297  (Gil.  205) 448 

City  of  Salem  v.  Harvey,  129  111.  344,  21  N.  E.  1076;  29  111.  App.  483 411 

City  of  Salina  v.  Trosper,  27  Kan.  545 77 

City  of  South  Omaha  v.  Powell,  50  Neb.  798,  70  N.  W.  391 432 

City  of  Springfield  v.  Le  Claire,  49  111.  476 426 

City  of  Sterling  v.  Schiffmacher,  47  111.  App.  141 164 

City  of  Tiffin  v.  McCormack,  34  Ohio  St.  638 168 

City  of  Vicksburg  v.  McLain,  67  Miss.  4,  6  South.  774 67,  410,  414 

City  of  Virginia  v.  Plummer,  65  111.  App.  419 432 

City  of  Wilmington  v.  Vandegrift,  1  Marv.  5,  29  Atl.  1047 451 

City  &  S.  Ry.  Co.  v.  Moores,  80  Md.  348,  30  Atl.  643 161,  164 

Clack  v.  Supply  Co.,  72  Mo.  App.  506 158,  171 

Clapper  v.  Kells,  78  Hun,  34,  28  N.  Y.  Supp.  1018 316 

Clardy  v.  Railroad  Co.,  73  Mo.  576 346 

Clark  v.  Barnwell,  12  How.  272 216 

v.  Burns,  118  Mass.  275 217,  277 

v.  Chambers,  3  Q.  B.  Div.  327 11 

v.  City  of  Manchester,  62  N.  H.  577 421 

v.  Foot,  8  Johns.  (N.  Y.)  421 349,  350 

v.  Fry,  8  Ohio  St.  358 161 

v.  Geer,  32  C.  C.  A.  295,  86  Fed.  447 212 

v.  Hughes,  51  Neb.  780,  71  N.  W.  776 148 

v.  Listen,  54  111.  App.  578 94 

v.  Railroad  Co.,  69  Fed.  543 86 

80  Hun,  320,  30  N.  Y.  Supp.  126 152 

164  Mass.  434,  41  N.  E.  666 333 

39  Mo.  184 230 

64  N.  H.  323,  10  Atl.  676 46 

91  N.  C.  506 .184 


486  CASES  CITED. 

Pace 

Clark  v.  Railroad  Co.,  109  N.  C.  430,  14  S.  E.  43 3S 

Clarke  v.  City  of  Richmond,  83  Va.  355,  5  S.  E.  369 4.12 

v.  Gray,  6  East,  564 2.-.S 

v.  Needles,  25  Pa.  St.  338 279 

v.  Pennsylvania  Co.,  132  Ind.  199,  31  N.  E.  808 147 

v.  Railroad  Co.,  33  Minu.  359,  23  N.  W.  536 3.J5 

14  N.  Y.  570 262,  2(56 

Clarkin  v.  Biwabik-Bessemer  Co.,  65  Minn.  483,  67  N.  W.  1020 50,  306,  307 

Glaus  v.  Steamship  Co.,  32  C.  C.  A.  282,  89  Fed.  646 37 

Claxton's  Adm'r  v.  Railroad  Co.,  13  Bush  (Ky.)  636 394 

Claybaugh  v.  Railway  Co.,  56  Mo.  App.  630 Ill 

Claypool  v.  McAllister,  20  111.  504 216 

Clayton  v.  City  of  Henderson  (Ky.)  44  S.  W.  667 443,  445 

v.  Hunt,  3  Camp.  27 256 

Cleary  v.  Packing  Co.,  71  Minn.  150,  73  N.  W.  717 82 

Cleaveland  v.  Railroad  Co.,  42  Vt  449 352,  357 

Cleghorn  v.  Railroad  Co.,  56  N.  Y.  44 76 

Cleland  v.  Thornton,  43  Cal.  437 350 

Clemence  v.  City  of  Auburn,  66  N.  Y.  334 449 

Clendaniel  v.  Tuckerman,  17  Barb.  (N.  Y.)  184 283 

Cleveland  v.  King,  132  U.  S.  295,  10  Sup.  Ct.  90 432 

v.  Railroad  Co.,  35  Iowa,  220 344 

v.  Steamboat  Co.,  68  N.  Y.  300 193 

89  N.  Y.  627 204 

125  N.  Y.  299,  26  N.  E.  327 *. . .  204 

Cleveland,  C.,  C.  &  I.  Ry.  Co.  v.  Asbury,  120  Ind.  289,  22  N.  E.  140 6 

v.  Elliott,  28  Ohio  St.  340 51,  338 

v.  Scudder,  40  Ohio  St.  173 347 

Cleveland,  C.,  C.  &  St.  L.  R.  Co.  v.  Adair,  12  Ind.  App.  569,  39  N.  E. 

672,  40  N.  E.  822 327 

v.  Brown,  20  C.  C.  A.  147,  73  Fed.  970 95 

v.  Case,  71  111.  App.  459 358 

v.  Doerr,  41  111.  App.  530 32 

v.  Martin  (Ind.  App.)  39  N.  E.  759 92 

v.  Miller,  149  Ind.  90,  49  N.  E.  445 330 

v.  Newlin,  74  111.  App.  638 244 

v.  Patterson,  69  111.  App.  438 266 

v.  Scantland,  151  Ind.  488,  51  N.  E.  1068 359 

v.  Selsor,  55  111.  App.  685 • 90 

v.  Smith,  78  111.  App.  429 331 

v.  Tartt,  12  C.  a  A.  618,  64  Fed.  823 327 

v.  Ward,  147  Ind.  256,  45  N.  E.  325,  46  N.  E.  462 96 

Cleveland,  C.  &  C.  R.  Co.  v.  Bartram,  11  Ohio  St.  457 197,  200 

v.  Crawford,  24  Ohio  St.  631 83,  396 

v.  Keary,  3  Ohio  St.  201 142 

v.  Terry,  8  Ohio  St.  570 75,  332,  336 

Cleveland,  P.  &  A.  R.  Co.  v.  Curran,  19  Ohio  St.  1 212 

Cleveland  &  P.  R.  Co.  v.  Rowan,  66  Pa.  St.  393 405,  406 

Cleves  v.  Willoughby,  7  Hill  (N.  Y.)  83 315 


CASES  CITED.  48 / 

Page 

Cliff  v.  Railroad  Co.,  L.  R.  5  Q.  B.  258 332 

Clifford  v.  Cotton  Mills,  146  Mass.  47,  15  N.  E.  84 312 

v.  Dam,  81  N.  Y.  52 314 

Cline  v.  Railroad  Co.,  43  La.  Ann.  327,  9  South.  122 399 

Clore  v.  Mclntire,  120  Ind.  262,  22  N.  E.  128 403 

Clowdis  v.  Irrigation  Co.,  118  Gal.  315 365 

Clyde  v.  Hubbard,  88  Pa.  St.  357,  358 293,  294 

v.  Railroad  Co.,  69  Fed.  673 145 

Clyne  v.  Holmes  (N.  J.  Sup.)  39  Atl.  767 316 

Coates  v.  Railway  Co.,  62  Iowa,  486,  17  N.  W.  760 413 

61  Mo.  38 352,  360 

v.  Town  of  Canaan,  51  Vt.  131 437 

Cobb  v.  Howard,  3  Blatchf.  524,  Fed.  Cas.  No.  2,924 210 

Cochran  v.  Dinsmore,  49  N.  Y.  249 219 

v.  Miller,  13  Iowa,  128 378 

v.  Railroad  Co.,  184  Pa.  St.  565,  39  Atl.  296 42 

Cochrane  v.  Little,  71  Md.  323,  18  Atl.  698 373 

Cockerham  v.  Nixon,  33  N.  C.  269 363,  364 

Cockle  v.  Railway  Co.,  L.  R.  5  C.  P.  457;   L.  R.  7  C.  P.  321 180 

Coffee  v.  Railroad  Co.  (Miss.)  25  South.  157 267 

Coffin  v.  Inhabitants,  162  Mass.  192,  38  N.  E.  509 437 

v.  Railroad  Co.,  64  Barb.  (N.  Y.)  379 235 

v.  Town  of  Xantucket,  5  Cush.  (Mass.)  269 452 

Cofield  v.  McCabe,  58  Minn.  218,  59  N.  W.  1005 172 

Coger  v.  Packet  Co.,  37  Iowa,  145 195 

Coggs  v.  Bernard,  2  Ld.  Raym.  909,  918 31,  218,  220,  229 

1  Smith,  Lead.   Cas.  317 225 

Cogswell  v.  Railroad  Co.,  6  Or.  417 75 

Cohen  v.  Express  Co.,  45  Ga.  148 295 

v.  Mayor,  113  N.  Y.  532,  21  N.  E.  700 435,  446 

v.  Railroad  Co.,  14  Nev.  376 326 

Cole  v.  City  of  Nashville,  4  Sneed    (Tenn.)  162 449 

v.  Fisher,  11  Mass.  137 368 

v.  Goodwin,  19  Wend.  (N.  Y.)  251 245,  254,  260,  267 

v.  Railway  Co.,  105  Mich.  549,  63  N.  W.  647 356 

71  Wis.  114,  37  N.  W.  84 121,  123 

v.  Trustees,  27  Barb.  (N.  Y.)  218 449 

Colegrove  v.  Railroad  Co.,  6  Duer,  382 57 

20   N.    Y.   492    207 

Coleman  v.  Railroad  Co.,  84  Ga.  1,  10  S.  E.  498 211 

25  S.  C.  446 149 

Coley  v.  City  of  Statesville,  121  N:  G.  301,  28  S.  E.  482 11,  405,  442 

Colfax  Mountain  Fruit  Co.  v.  Southern  Pac.  Co.,  118  Cal.  648,   50  Pac. 

775,  40  Lawy.  Rep.  Ann.  78 292 

Colgrove  v.  Smith,  102  Cal.  220,  36  Pac.  411 164 

Collenberg,  The,  1  Black,  170 234 

Collender  v.  Dinsmore,  55  N.  Y.  200 293 

Collett  v.  Railway  Co.,  16  Q.  B.  984 .  189 


'488  CASES  CITED. 

Page 

Collins  v.  City  of  Philadelphia,  93  Pa.  St.  272 429 

v.  Crimmins  (Super.  N.  Y.)  31  N.  Y.  Supp.  860 93 

v.  Davidson,  19  Fed.  83 405 

v.  Inhabitants,  172  Mass.  78,  51  N.  E.  454 431 

v.  Mayor,  etc.,  77  Ga.  745 450 

v.  Railroad  Co.,  10  Cush.  (Mass.)  506 274 

11  Exch.  790 290 

5  Hun  (X.  Y.)  499 360 

92  Hun,  563,  36  N.  Y.  Supp.  942 330,  338 

v.  State,  3  Ind.  App.  542,  30  N.  E.  12 383 

Collyer  v.  Railroad  Co.,  49  N.  J.  Law,  59,  6  Atl.  437 95 

Colonel  Ledyard,  The,  1  Spr.  530,  Fed.  Cas.  No.  3,027 223,  231 

Colorado  Coal  &  Iron  Co.  v.  Lamb,  6  Colo.  App.  255,  40  Pac.  251 112,  146 

Colorado  Mortg.  &  Inv.  Co.  v.  Rees,  21  Colo.  Sup.  435/42  Pac.  42 304 

Colorado  M.  Ry.  Co.  v.  Naylon,  17  Colo.  501,  30  Pac.  249 146 

Colt  v.  McMechen,  6  Johns.  (N.  Y.)  160 218,  225,  227 

Colton  v.  Railroad  Co.,  67  Pa.  St.  211 219 

Columbus,  C.  &  I.  C.  Ry.  Co.  v.  Powell,  40  Ind.  37 194 

v.  Troesch,  68  111.   545 130 

Columbus  &  I.  C.  Ry.  Co.  v.  Farrell,  31  Ind.  408 180 

Columbus  &  W.  Ry.  Co.  v.  Kennedy,  78  Ga.  646,  3  S.  W.  267 218 

v.  Ludden,  89  Ala.  612,  7  South.  471 286,  287 

Colvin  v.  Peabody,  155  Mass.  104,  29  N.  E.  59 156 

Combe  v.  Railroad  Co.,  31  Law  T.  (N.  S.)  613 223 

Comer  v.  Barfield,  102  Ga.  485,  31  S.  E.  89 339 

v.  Railroad  Co.,  52  S.  C.  36,  29  S.  E.  637 266 

v.  Shaw,  98  Ga.  543,  25  S.  E.  733 338 

Commercial  Bank  v.  Barksdale,  36  Mo.  563 386 

v.  Varnum,  49  N.  Y.  269 386 

Commercial  Electric  Light  &  Power  Co.  v.  City  of  Tacoma  (Wash.)  55 

Pac.  219   441 

Com.  v.  Blaisdell,  107  Mass.  234 435 

v.  Capp,  48  Pa.  St.  53 436 

v.  East  Boston  Ferry,  13  Allen  (Mass.)  589 420 

v.  Haines,  97  Pa.  St.  228. 386 

v.  Lightfoot,  7  B.  Mon.  (Ky.)  298 384 

v.  McCoy,  8  Watts  (Pa.)  153 382 

v.  Plaisted,  148  Mass.  375,  19  N.  E.  224 443 

v.  Power,  7  Mete.  (Mass.)  596 184,  192,  194 

v.  Railroad  Co.,  5  Gray  (Mass.)  473 403 

107  Mass.  236 397 

108  Mass.  7 : 188.  190 

112  Mass.  412   159 

121  Mass.  36 403 

129  Mass.  500 41 

V.  Railroad  Corp.,  11  Cush.  (Mass.)  512 420 

101  Mass.  201 323 

v.  Thompson,  6  Mass.  134 377,  378 

Conant  v.  Griffin,  48  111.  410 416 


CASES  CITED.  489 

Page 

Conflict  v.  Jersey  City,  46  N.  J.  Law,  157 453 

v.  Railway  Co.,  54  N.  Y.  500 24,  225,  227,  294 

Condon  v.  Railway  Co.,  16  Ir.  C.  L.  415 409 

55  Mich.  218,  21  N.  W.  321  291 

Condran  v.  Railway  Co.,  14  C.  C.  A.  506,  67  Fed.  522 195 

Congar  v.  Railroad  Co.,  24  Wis.  157 232 

Conger  v.  Railroad  Co.,  6  Dner  (N.  Y.)  375 233,  236,  262 

Congreve  v.  Morgan,  18  N.  Y.  84 25 

v.  Smith,  18  N.  Y.  79 314 

Conkey  v.  Railway  Co.,  31  Wis.  619 291 

Conklin  v.  City  of  Elmira,  11  App.  Div.  402,  42  N.  Y.  Supp.  518 432 

Conkling  v.  Railroad  Co.  (N.  J.  Err.  &  App.)  43  Atl.  606 330,  332 

Conley  v.  City  of  Portland,  78  Me:  217,  3  Atl.  658 448 

Conlon  v.  City  of  St.  Paul,  70  Minn.  216,  72  N.  W.  1073 430 

Connecticut  Mut.  Life  Ins.  Co.  v.  Railroad  Co.,  25  Conn.  265 391 

Connelly  v.  Rist,  20  Misc.  Rep.  31,  45  N.  Y.  Supp.  321 20,  25 

v.  Woolen  Co.,  163  Mass.  156,  39  N.  E.  787 Ill 

Conner  v.  Railroad  Co.,  .146  Ind.  430,  45  N.  E.  662 82 

Conners  v.  Hennessey,  112  Mass.  96 162,  166 

v.  Railway  Co.,  71  Iowa,  490,  32  N.  W.  465 398 

Connerton  v.  Canal  Co.,  168  Pa.  St.  339,  32  Atl.  416 337 

Connolly  v.  Davidson,  15  Minn.  519  (Gil.  428) 129 

v.  Ice  Co.,  114  N.  Y.  104,  21  N.  E.  101 Go 

v.  Poillon,  41  Barb.  (N.  Y.)  366,  41  N.  Y.  619 117 

v.  Railroad  Co.,  158  N.  Y.  675,  52  N.  E.  1124 345 

v.  Warren,  106  Mass.  146 269,  271 

Connor  v.  City  of  New  York,  28  App.  Div.  186.  50  N.  Y.  Supp.  972 415 

v.  Traction  Co.,  173  Pa.  St.  602,  34  Atl.  238 52 

Conolly  v.  Railroad  Co.,  4  App.  Div.  221,  38  N.  Y.  Supp.  587 345 

Conrad  v.  Village  of  Ithaca,  16  N.  Y.  158 426 

Conroy  v.  Iron  W'orks,  62  Mo.  35 120 

Consolidated  Coal  Co.  v.  Scheiber,  167  111.  539,  47  N.  E.  1052 135 

Consolidated  Ice-Mach.  Co.  v.  Keifer,  134  111.  481,  25  N.  E.  799 399,  419 

Consolidated  Traction  Co.  v.  Behr,  59  N.  J.  Law,  477,  37  Atl.  142 84 

v.  Hone,  59  N.  J.  Law,  275,  35  Atl.  899 396 

60  N.  J.  Law,  444,  38  Atl.  759 406 

v.  Scott,  58  N.  J.  Law,  682,  34  Atl.  1094 66 

v.  Taborn,  58  N.  J.  Law,  1,  32  Atl.  685 186 

Constable  v.  Steamship  Co.,  154  U.  S.  51,  14  Sup.  Ct.  1062,  38  L.  Ed. 

903  285,  286 

Continental  Trust  Co.  v.  Railroad  Co.,  89  Fed.  637 353 

Converse  v.  Transportation  Co.,  33  Conn.  166 280,  281,  292,  294 

Conway  v.  City  of  Beaumont,  61  Tex.  10 425 

v.  Magill,  53  Xeb.  370,  73  N.  W.  702 384 

v.  Railroad  Co.,  13  Misc.  Rep.  53,  34  N.  Y.  Supp.  113 133 

Cook  v.  City  of  Milwaukee,  24  Wis.  270 433 

v.  Gourdin,  2  Nott  &  McC.  (S.  C.)  19 222 

v.  Mfg.  Co.,  53  Hun,  632,  7  N.  Y.  Supp.  950 92 

v.  Navigation  Co.,  76  Tex.  353,  13  S.  W.  475 395 


490  CASES  CITED. 

Page 

Cook  v.  Railroad  Co.,  10  Hun,  426 '. .  413 

34  Minn.  45,  24  X.  \V.  311 123 

12  Reporter  (Ala.)  356 41 

97  Wis.  624,  74  N.  W.  561 14,  20 

Cookson  v.  Railway  Co.,  179  Pa.  St.  184,  36  AtL  194 32 

Coolbroth  v.  Railroad  Co.,  77  Me.  165 109 

Cooley  v.  Chosen  Freeholders  of  Essex  County,  27  X.  J.  Law,  415 454 

Coombs  v.  Cordage  Co.,  102  Mass.  572 21,  106,  107,  119 

v.  Purrington,  42  Me.  332 37 

v.  Reg.,  26  Can.  Sup.  Ct  13 200 

Cooney  v.  Palace-Car  Co.  (Ala.)  25  South.  712 270 

Cooper,  Ex  parte,  11  Ch.  Div.  68 298 

y.  Railroad  Co.,  44  Iowa,  134 102 

66  Mich.  261,  33  N.  W.  306 410,  433 

24  W.  Va,  37 90 

Cope  v.  Cordova,  1  Rawle  (Pa.)  203 282 

Corbin  v.  American  Mills,  27  Conn.  274 157 

Corcoran  v.  Railroad  Co.,  6  C.  C.  A.  231,  56  Fed.  1014 155 

133  Mass.  507 398 

Cordell  v.  Railroad  Co.,  64  N.  Y.  535 328 

75  N.  Y.  330 87 

Cork  v.  Blossom,  162  Mass.  330,  38  N.  E.  495 303 

Corneilson  v.  Railway  Co.,  50  Minn.  23,  52  N.  W.  224 52 

Cornwall  v.  Mills,  44  N.  Y.  Super.  Ct.  45 413 

Corry  v.  Tate,  48  S.  C.  548,  26  S.  E.  794 383 

Corwin  v.  Railroad  Co.,  13  N.  Y.  42 340,  341,  345-347 

Cosgrove  v.  Pitman,  103  Cal.  274,  37  Pac.  232 100 

v.  Railroad  Co.,  13  Hun  (N.  Y.)  329 330 

Costa  Coal  Mines  R.  Co.  v.  Moss,  23  Cal.  323 216 

Costello  v.  Judson,  21  Hun  (N.  Y.)  396 119 

v.  Railroad  Co.,  65  Barb.  (N.  Y.)  92 336 

Couch  v.  Railroad  Co.,  22  S.  C.  557 149 

Coughtry  v.  Woolen  Co.,  56  N.  Y.  124 129,  304 

Cougle  v.  McKee,  151  Pa.  St.  602,  25  AtL  115 94 

Couls.on  v.  Leonard,  77  Fed.  538 145 

Coulter  v.  Express  Co.,  56  N.  Y.  585 41 

County  Com'rs  of  Anne  Arundel  Co.  v.  Duckett,  20  Md.  468 456 

County  Com'rs  of  Prince  George  Co.  v.  Burgess,  61  Md.  29 84 

Coupe  v.  Platt,  172  Mass.  458,  52  N.  E.  526 314 

Coupland  v.  Hardingharn,  3  Camp.  398 311 

Courtney  v.  Baker,  60  N.  Y.  1 173 

Covington  Co.  v.  Kinney,  45  Ala.  176 456 

Covington  St.  R.  Co.  v.  Packer,  9  Bush  (Ky.)  455 400 

Coward  v.  Railroad  Co.,  16  Lea  (Term.)  225 239,  249,  270 

Cox  v.  Brackett,  41  111.  222 85 

v.  Burbidge,  13  C.  B.  (N.  S.)  430 363 

v.  Foscue,  37  Ala.  505 224 

v.  Leech,  1  C.  B.  (N.  S.)  617 371 

V.  Peterson,  30  Ala.  608 227 


CASES  CITED.  401 

*  Paga 

Cox  v.  Railroad  Co.,  3  Post.  &  F.  77 223 

170  Mass.  129,  49  N.  E.  97 239,  250 

123  N.  C.  604,  31  S.  E.  848 85 

v.  Road  Co.,  33  Barb.  (N.  Y.)  414 75 

Coxon  v.  Railway  Co.,  5  Hurl.  &  N.  274 295 

Coyle  v.  Iron  (N.  J.  Sup.)  41  Atl.  680 96 

v.  Pierrepont,  33  Hun  (N.  Y.)  311 128 

37  Hun  (N.  Y.)  379 157 

Crabell  v.  Coal  Co.,  68  Iowa,  751,  28  N.  W.  56 152 

Craft  v.  Parker,  Webb  &  Co.,  96  Mich.  245,  55  N.  W.  812 370 

Crafter  Y.  Railway  Co.,  L.  R.  1  C.  P.  300 435 

Cragin  v.  Railroad  Co.,  51  N.  Y.  61 234,  245,  253,  262,  266 

Craig  v.  Ohildress,  Peck  (Tenn.)  270 221 

v.  City  of  Charleston,  78  111.  App.  312 442 

Craker  v.  Railroad  Co.,  36  Wis.  657 170 

Crandall  v.  Transportation  Co.,  11  Biss.  516,  16  Fed.  75 27,  37 

Craven  v.  Smith,  89  Wis.  119,  61  N.  W.  317 109,  118 

Graver  v.  Christian,  36  Minn.  413,  31  N.  W.  457 151 

Crawford  v.  Clark,  15  111.  161 286 

v.  Railroad  Ass'n,  51  Miss.  222 294 

v.  Railroad  Co.,  26  Ohio  St.  580 201 

Grawshay  v.  Eades,  1  Barn.  &  O.  182 298 

Craycroft  v.  Railroad  Co.,  18  Mo.  App.  487 239 

Creed  v.  Hartmann,  29  N.  Y.  591 167 

v.  Kendall,  156  Mass.  291,  31  N.  E.  6 72 

Cremer  v.  Town  of  Portland,  36  Wis.  92 37 

Crenshaw  v.  Ullman,  113  Mo.  633,  20  S.  W.  1077 161,  163,  165 

Crescent  Tp.  v.  Anderson,  114  Pa.  St.  643,  8  Atl.  379 58 

Cresson  v.  Railroad  Co.,  11  Phila.  (Pa.)  597 201 

Crew  v.  Railway  Co.,  20  Fed.  87 97 

Crittendon  v.  Wilson,  5  Cow.  (N.  Y.)  165 318 

Crocker  v.  Railroad  Co.,  24  Conn.  249 169 

Crockett  v.  Calvert,  8  Ind.  127 157 

Croff  v.  Cresse,  7  Okl.  408,  54  Pac.  558 366 

Croft  v.  Alison,  4  Barn.  &  Aid.  590 168 

v.  Steamship  Co.  (Wash.)  55  Pac.  42 209 

Cronkite  v.  Wells,  32  N.  Y.  247 280 

Groom  v.  Railway  Co.,  52  Minn.  296,  53  N.  W.  1128 206 

Crosbie  v.  Murphy,  8  Ir.  C.  L.  301 373 

Crosby  v.  Fitch,  12  Conn.  410 216,  224,  236 

V.  Hungerford,  59  Iowa,  712,  12  N.  W.  582 382 

V.  Railroad  Co.,  88  Hun,  196,  34  N.  Y.  Supp.  714 337 

69  Me.  418 198 

Cross  v.  Guthery,  2  Root  (Conn.)  90 391 

v.  Railway  Co.,  56  Mo.  App.  664 193 

Crossett  v.  City  of  Janesville,  28  Wis.  420 449 

Crouch  v.  Railway  Co.,  14  C.  B.  255,  284 216,  231 

21  S.  C.  495 84 

Crowell  Y.  Thomas,  18  App.  Div.  520,  46  N.  Y.  Supp.  137 133 


492  CASES  CITI:D. 

Page 

Crowhurst  v.  Board,  18  Alb.  Law  J.  514 '. . .  310 

4  Exch.  Div.  5 370 

Crowty  v.  Stewart,  95  Wis.  490,  70  N.  W.  558 379 

Crystal  Palace,  The,  v.  Vanderpool,  16  B.  Mon.  (Ky.)  302 217,  277 

Cuddy  v.  Horn,  46  Mich.  596,  10  N.  W.  32 57,  207 

Cuff  v.  Railroad  Co.,  35  N.  J.  Law,  17 1U1,  102,  166- 

Culbertson  v.  Railroad  Co.,  88  Wis.  567,  60  N.  W.  998 43 

Culverson  v.  City  of  Maryville,  67  Mo.  App.  343 434 

Cumberland  Val.  R.  Co.  v.  Myers,  55  Pa.  St.  288 189' 

Cunningham  v.  Los  Angeles  Ry.  Co.,  115  Cal.  561,  47  Pac.  452 100 

v.  Lyness,  22  Wis.  236 36,  86- 

v.  Railway  Co.,  115  Cal.  561,  47  Pac.  452 87 

51  Tex.  503 129- 

Curley  v.  Harris,  11  Allen  (Mass.)  112,  121 97,  129 

v.  Hoff  (N.  J.  Err.  &  App.)  42  Atl.  731 93 

Curran  v.  City  of  Boston,  151  Mass.  505,  24  N.  E.  781 425,  426 

v.  Mfg.  Co.,  130  Mass.  374 119- 

Currier  v.  Association,  135  Mass.  414 304 

v.  Henderson,  85  Hun,  300,  32  N.  Y.  Supp.  953 157 

v.  Inhabitants  of  Lowell,  16  Pick.  (Mass.)  170 25 

Curtis  v.  Kiley,  153  Mass.  123,  26  N.  E.  421 161,  163 

v.  Mills,  5  Car.  &  P.  489 362,  365- 

v.  Railroad  Co.,  49  Barb.  (N.  Y.)  148 83 

94  Ky.  573,  23  S.  W.  363 201 

18  N.  Y.  534,  538 204 

74  N.  Y.  116 254,  274 

Curtlss  v.  Railroad  Co.,  20  Barb.  (N.  Y.)  282 206 

Cushing  v.  City  of  Boston,  128  Mass.  330 436 

v.  Inhabitants  of  Bedford,  125  Mass.  526 436,  444 

Cusick  v.  Adams,  115  N.  Y.  55,  21  N.  E.  673 49,  50 

Cutts  v.  Brainerd,  42  Vt.  566 292 

Cuyler  v.  Decker,  20  Hun,  173 41 

Czezewzka  v.  Railway  Co.,  121  Mo.  201,  25  S.  W.  911 38 

D 

Daggett  v.  Shaw,  3  Mo.  264 218- 

Dale  v.  Railway  Co.,  63  Mo.  455 118 

Daley  v.  Railroad  Co.,  26  Conn.  591 36,  62 

Dallas  &  W.  R.  Co.  v.  Spicker,  61  Tex.  427 84,  407 

Dalton  v.  Railway  Co.,  4  C.  B.  (N.  S.)  296,  4  Jur.  (N.  S.)  711,  27  Law  J.  C. 

P.  227 4ia 

v.  Receivers,  4  Hughes,  180,  Fed.  Cas.  No.  3,550 159 

Daly  v.  City  &  Town  of  New  Haven,  69  Conn.  644,  38  Atl.  397 444,  450- 

v.  Hinz,  113  Cal.  366,  45  Pac.  693 85 

Dalyell  v.  Tyrer,  El.,  Bl.  &  El.  899 157 

28  Law.  J.  Q.  B.  52 189 

Dana  v.  Railroad  Co.,  50  How.  Prac.  (X.  Y.)  428 291 

92  N.  Y.  639  .  .  102 


CASES  CITED.  493 

Page 

Daniels  v.  Ballantine,  23  Ohio  St  532 24 

v.  Ciegg,  28  Mich.  32 31 

v.  Railroad  Co.,  154  Mass.  349,  28  N.  E.  283 307 

Daniel's  Adin'r  v.  Railway  Co.,  36  W.  Ya.  397,  15  S.  E.  162 150 

Danville,  L.  &  N.  Turnpike  Co.  v.  Stewart,  2  Mete.  (Ky.)  119 57,  59 

Darling  v.  Baugor,  68  Me.  108 429 

v.  Railroad  Co.,  121  Mass.  118 343 

v.  Railroad  Corp.,  11  Allen  (Mass.)  295 294 

Darrigan  v.  Railroad  Co.,  52  Conn.  285 146 

Dartmouth  College  v.  Woodward,  4  Wheat.  518 424 

Dascomb  v.  Railroad  Co.,  27  Barb.  (N.  Y.)  221 338,  339 

Davenport  v.  Ruckman,  16  Abb.  Prac.  (N.  Y.)  341 336 

10  Bosw.  (N.  Y.)  20,  37 313 

37  N.  Y.  568 75,  313,  336 

Davidson  v.  City  of  New  York,  24  Misc.  Rep.  560,  54  N.  Y.  Supp.  51 441 

v.  Cornell,  132  N.  Y.  228,  30  N.  E.  573 122 

T.  Graham,  2  Ohio  St.  131. '. 212 

v.  Gwynne,  12  East,  381 2:r> 

v.  Nichols,  11  Allen  (Mass.)  514 19 

v.  Railroad  Co.,  171  Pa.  St.  522,  33  Atl.  86 330 

Davies  v.  Mann,  10  Mees.  &  W.  546 35,  39,  338 

Davis  v.  Ferris,  29  App.  Div.  623,  53  N.  Y.  Supp.  571 50,  305 

v.  Garrett,  6  Bing.  716 24,  27,  224 

v.  Guarnieri,  45  Ohio  St.  470,  15  N.  E.  350 59,  61,  71,  396,  414 

v.  Houghtellin,  33  Neb.  582,  50  N.  W.  765 173 

v.  Inhabitants  of  Dudley,  4  Allen  (Mass.)  557 23 

v.  Justice,  31  Ohio  St.  359 '. 400 

v.  Nichols,  54  Ark.  358,  15  S.  W.  880 402 

v.  Railroad  Co.,  53  Ark.  117,  13  S.  W.  801 400 

105  Cal.  131,  38  Pac.  647 42 

10  How.  Prac.  (N.  Y.)  330 269 

22    III    278 269-271 

121  Mass.  134 209 

20  Mich.   105 100 

53  Mo.  317 193 

89  Mo.  340,  1  S.  W.  327 219,  222,  22(5 

47  N.  Y.  400 330 

55  Vt.  84 150 

66  Vt.  290,  29  Atl.  313 223,  256 

58  Wis.  646,  17  N.  W.  406 327 

v.  Standish,  26  Hun  (N.  Y.)  608 400 

Dawley  v.  Car  Co.,  169  Mass.  315,  47  N.  E.  1024 275 

Dav,  son  v.  Railroad  Co.,  L.  R.  8  Exch.  8 341 

76  Mo.  514 251 

Day  v.  Owen,  5  Mich.  520 191,  193,  194,  196 

v.  Ridley,  16  Vt.  48 220 

v.  Woodworth,  13  How.  363 7 

Dayharsh  v.  Railroad  Co.,  103  Mo.  570,  15  S.  W.  554 .' 148 

Dealey  v.  Muller,  149  Mass.  432,  21  N.  E.  763 66 


494  CASES  CITED. 

Page 

Bean  v.  Railroad  Co.,  129  Pa.  St  514,  18  Atl.  718 58 

v.  Vaccaro,  2  Head  (Term.)  488 28G 

Dearborn  v.  Dearborn,  15  Mass.  316 375 

De  Camp  v.  Railroad  Co.,  12  Iowa,  348 169 

Decker  v.  Railroad  Co.,  3  Okl.  553,  41  Pac.  610 184 

181  Pa.  St.  465,  37  Atl.  570 330 

Deeds  v.  Railroad  Co.,  69  Iowa,  164,  28  N.  W.  488 38 

Defiance  Water  Co.  v.  Olinger,  54  Ohio  St  532,  44  N.  E.  238 304 

De  Forest  v.  Jewett,  88  N.  Y.  264 116 

Degnan  v.  Ransom,  83  Hun,  267,  31  N.  Y.  Supp.  966 377 

De  Graff  v.  Railroad  Co.,  76  N.  Y.  125 118 

De  Grau  v.  Wilson,  17  Fed.  698 285 

De  loia  v.  Railroad  Co.,  37  App.  Div.  455,  56  N.  Y.  Supp.  22 323 

Deisen  v.  Railway  Co.,  43  Minn.  454,  45  N.  W.  864 413 

Deisenrieter  v.  Malting  Co.,  97  Wis.  279,  72  N.  W.  735 10,  87 

Delaney  v.  Railroad  Co.,  33  Wis.  67 327 

Delaware,  The,  14  Wall.  579 216 

Delaware,  L.  &  W.  R.  Co.  v.  Jones,  128  Pa.  St.  308,  18  Atl.  330 408,  409 

v.  Reich  (N.  J.  Err.  &  App.)  40  Atl.  682 307 

v.  Salmon,  39  N.  J.  Law,  299,  300,  309 19,  26,  27,  352 

v.  Toffey,  38  N.  J.  Law,  525 84 

Delger  v.  City  of  St.  Paul,  14  Fed.  567 432 

Dells  v.  Stollenwerk,  78  Wis.  339,  47  N.  W.  431 174 

Delta  Electric  Co.  v.  Whitcamp,  58  m.  App.  141 343 

Del  Valle  v.  The  Richmond,  27  La,  Ann.  90 277 

Demarest,  In  re,  86  Fed.  803 306 

Demarest  v.  Little,  47  N.  J.  Law,  28 411,  412,  414 

Deming  v.  Railroad  Co.,  48  N.  H.  455 237 

v.  Storage  Co.,  90  Tenn.  306, 17  S.  W.  89 24 

De  Mott  v.  Laraway,  14  Wend.  (N.  Y.)  225 216,  281 

Dempsey  v.  Chambers,  154  Mass.  330,  28  N.  E.  279 159 

Denman  v.  Railroad  Co.,  26  Minn.  357,  4  N.  W.  605 78 

Dennick  v.  Railroad  Co.,  103  U.  S.  11 401 

Denning  v.  Gould,  157  Mass.  563,  32  N.  E.  862 94 

Dennison  v.  The  Wataga,  1  Phila.  (Pa.)  468 210 

Denny  v.  Railroad  Co.,  13  Gray  (Mass.)  481 24,  221,  225 

Densmore  Commission  Co.  v.  Duluth,  S.  S.  &  A.  Ry.  Co.,  101  Wis.  563,  77 

N.  W.  904 223 

Denver,  S.  P.  &  P.  R.  Co.  v.  Discoll,  12  Colo.  520,  21  Pac.  708 146 

v.  Woodward,  4  Colo.  1 402 

Denver  Tramway  Co.  v.  O'Brien,  8  Colo.  App.  74,  44  Pac.  766 14(3 

v.  Reed,  4  Colo.  App.  500,  36  Pac.  557 179,  184 

Denver,  T.  &  Ft.  W.  R.  Co.  v.  Smock,  23  Colo.  456,  48  Pac.  681 86 

Denver,  T.  &  G.  R.  Co.  v.  Robbins,  2  Colo.  App.  313,  30  Pac.  261 16 

Denver  &  B.  P.  Rapid-Transit  Co.  v.  Dwyer,  20  Colo.  132,  36  Pac.  1106. .     38 

Denver  &  R.  G.  R.  Co.  v.  Andrews,  11  Colo.  App.  204,  53  Pac.  518 204 

v.  Gustafson,  21  Colo.  393,  41  Pac.  505 155,  334 

v.  Nye,  9  "Colo.  App.  94,  47  Pac.  654 343 

v.  Ryan,  17  Colo.  98,  28  Pac.  79 32 


CASES  CITED.  495 

Page 

Denver  &  R.  G.  R.  Co.  v.  Sipes  (Colo.  Sup.)  55  Pac.  1093 90,  151 

De  Palacios  v.  Railway  Co.  (Tex.  Civ.  App.)  45  S.  W.  612 191 

Deppe  v.  Railroad  Co.,  36  Iowa,  52 147 

Derby's  Adm'r  v.  Railroad  Co.  (Ky.)  4  S.  W.  303 7 

Derk  v.  Railway  Co.,  164  Pa.  St.  243,  30  Atl.  231 337 

Derosia  v.  Railroad  Co.,  18  Minn.  133  (Gil.  119) 287 

Derwort  v.  Loomer,  21  Conn.  245 203 

Detroit  &  B.  C.  R.  Co.  v.  McKenzie,  43  Mich.  609,  5  N.  W.  1031 294 

Detzur  v.  Brewing  Co.  (Mich.)  77  N.  W.  948 23,  30a 

Devato  v.  Barrels  of  Plumbago,  20  Fed.  510 284,  285 

Devitt  v.  Railroad  Co.,  50  Mo.  302 95 

Devlin  v.  Smith,  89  N.  Y.  470 12& 

Deweese  v.  Mining  Co.,  128  Mo.  423,  31  S.  W.  110 105 

Dewey  v.  City  of  Detroit,  15  Mich.  307 438,  451 

v.  Leonard,  14  Minn.  153  (Gil.  120) 349,  350 

v.  Railway  Co.,  97  Mich.  329,  56  N.  W.  756 108,  137 

Dewire  v.  Bailey,  131  Mass.  169 51 

Dexter  v.  Railroad  Co.,  42  N.  Y.  326 269,  270,  274 

Dibble  v.  Brown,  12  Ga.  216,  217,  225,  226 216,  268,  269,  271,  272 

Dice  v.  Locks  Co.,  8  Or.  60 179,  208 

Dicken  v.  Coal  Co.,  41  W.  Va.  511,  23  S.  E.  582 49,  71 

Dickens  v.  Railroad  Co.,  1  Abb.  Dec.  504 411 

Dickius  v.  Railroad  Co.,  23  N.  Y.  158 403,  404 

Dickinson  v.  Boyle,  17  Pick.  (Mass.)  78 21,  24 

Dkkson  v.  Railway  Co.,  71  Mo.  575 314 

v.  Waldron,  135  Ind.  507,  34  N.  E.  506,  35  N.  E.  1 171 

Dietrich  v.  Railroad  Co.,  71  Pa.  St.  432 200 

Dillard  v.  Railroad  Co.,  2  Lea  (Tenn.)  288 252 

Dimmey  v.  Railway  Co.,  27  W.  Va.  32 401,  40& 

Diniuny  v.  Railroad  Co.,  49  N.  Y.  546 289 

Disano  v.  Brick  Co.  (R.  I.)  40  Atl.  7 91 

District  of  Columbia  v.  Wilcox,  4  App.  D.  C.  90 417 

Ditchett  v.  Railroad  Co.,  5  Hun  (N.  Y.)  165 77 

Dixon  v.  Bell,  5  Maule  &  S.  198 368 

v.  Dunham,  14  111.  324 284,  286 

v.  Navigation  Co.,  15  .Ont.  App.  647,  39  Am.  &  Eng.  R.  Gas.  425 273 

v.  Railroad  Co.,  109  Mo.  413,  19  S.  W.  412 130 

v.  Yates,  5  Barn.  &  Adol.  340 297 

Dlauhi  v.  Railway  Co.,  139  Mo.  291,  40  S.  W.  890 339 

Dobbins  v.  Railway  Co.,  91  Tex.  60,  41  S.  W.  62 31,  307 

Dodge  v.  Granger,  17  R.  I.  664,  24  Atl.  100 443 

v.  Steamship  Co.,  148  Mass.  207,  19  N.  E.  373 178 

Doggett  v.  Railroad  Co..  78  N.  C.  305 51 

Doherty  v.  Inhabitants  of  Braintree,  148  Mass.  495,  20  N.  E.  106 431 

v.  McLean,  171  Mass.  399,  50  N.  E.  938 50,  304 

Dolan  v.  Canal  Co.,  71  N.  Y.  285 334 

v.  City  of  Milwaukee,  89  Wis.  497,  61  N.  W.  564 437 

Dolby  v.  Hearn,  1  Marv.  153,  37  Atl.  45 350 

Dole  v.  Insurance  Co.,  51  Me.  465 229 


496  CASES  CITED. 

Page 

Donahoe  v.  City  of  Kansas  City,  136  Mo.  657,  38  S.  W.  571 148,  430,  432 

Donaldson  v.  Haldane,  7  Clark  &  F.  762 374 

1  v.  Railroad  Co.,  18  Iowa,  280 405,  413 

21  Minn.  293 82,  338 

Donley  v.  Dougherty,  174  111.  582,  51  N.  E.  714 120 

Donnelly  v.  Bridge  Co.,  117  Gal.  417,  49  Pac.  559 146 

v.  Tripp,  12  R.  I.  97 441,  444 

Donovan  v.  Oil  Co.,  155  N.  Y.  112,  49  N.  E.  678 248 

v.  Railway  Co.,  65  Conn.  201,  32  Atl.  350 177 

v.  Transit  Co.,  102  Cal.  245,  36  Pac.  516,  517 161,  164 

Dooner  v.  Canal  Co.,  164  Pa.  St.  17,  30  Atl.  269 96 

Doran  v.  Ferry  Co.,  3  Lans.  (N.  Y.)  105 194 

v.  Railway  Co.,  73  Iowa,  115,  34  N.  W.  619 343 

Dorman  v.  Ames,  12  Minn.  451  (Gil.  347) 313 

v.  Railroad  Co.  (City  Ct.  Brook.)  5  N.  Y.  Supp.  769 66 

Dorr  v.  Navigation  Co.,  11  N.  Y.  485 245 

4  Sandf.  (N.  Y.)  136 241,  254 

Dorrance's  Adm'rs  v.  Com.,  13  Pa.  St.  160 381,  384 

Dorsey  v.  Construction  Co.,  42  Wis.  583 114 

Doss  v.  Railroad  Co.,  59  Mo.  27 211 

Doty  v.  Village  of  Port  Jervis,  23  Misc.  Rep.  313,  52  N.  Y.  Supp.  57 442 

Dougherty  v.  Steel  Co.,  88  Wis.  343,  60  N.  W.  274 Ill,  122 

Doughty  v.  Log-Driving  Co.,  76  Me.  143 133,  148 

Douglas  v.  Railway  Co.,  100  Wis.  405,  76  N.  W.  356 339 

Douglass  v.  Railway  Co.,  91  Iowa,  94,  58  N.  W.  1070 202 

53  Mo.  473 231 

v.  Stephens,  18  Mo.  362 : 54,  173 

Doulon  v.  City  of  Clinton,  33  Iowa,  397 438 

Doupe  v.  Genin,  45  N.  Y.  119 315 

Dow  v.  Beidelman,  125  U.  S.  680,  8  Sup.  Ct.  1028 201 

Dowd  v.  Railroad  Co.,  162  Mass.  185,  38  N.  E.  440 138 

84  Wis.  105,  54  N.  W.  24 211 

Dowell  v.  Navigation  Co.,  5  El.  &  Bl.  195 35,  37 

v.  Railroad  Co.,  62  Iowa,  629,  17  N.  W.  901 109 

Dowling  v.  Nuebling,  97  Wis.  350,  72  N.  W.  871 316 

Downes  v.  Bridge  Co.  (Sup.)  58  N.  Y.  Supp.  628 43 

Doyle  v.  Kiser,  6  Ind.  242 270 

v.  Railroad  Co.,  27  C.  C.  A.  264,  82  Fed.  869 84 

162  Mass.  66,  37  N.  E.  770 190 

166  Mass.  492,  44  N.  E.  611 212 

42  Minn.  79,  43  N.  W.  787 108,  306,  307 

Drake  v.  City  of  Lowell,  13  Mete.  (Mass.)  292 436 

v.  Railroad  Co.,  80  Hun,  490,  30  N.  Y.  Supp.  671 103 

Drax  v.  Scroope,  2  Barn.  &  Adol.  581 373 

Drennan  v.  Grady,  167  Mass.  415,  45  N.  E.  741 309 

v.  Smith,  115  Ala.  396,  22  South.  442 161 

Drew  v.  Peer,  93  Pa.  St.  234 171 

v.  Railroad  Co.,  51  Cal.  425 200 


CASES  CITED.  497 

Page 

Drisooll  v.  City  of  Fall  River,  163  Mass.  105,  39  X.  E.  1003 99,  100,  437 

v.  ^caiilon,  1G5  Mass.  348,  43  X.  E.  100 158 

D.  R.  Martin,  Tlie,  11  Blatcbf.  233,  Fed.  Cas.  Xos.  1,030,  4,092 184,  192,  194 

Dnimuiond  v.  Southern  Pac.  Co.,  7  Utah,  118,  25  Pac.  733 199 

Drury  v.  Butler,  171  Mass.  171,  50  X.  E.  527 373 

v.  Inhabitants  of  Worcester,  21  Pick.  (Mass.)  44 435 

Dryburg  v.  Milling  Co.,  55  Pac.  367 150 

Dryden  v.  Railway  Co.,  60  Me.  512 199,  200 

Drymala  v.  Thompson,  26  Minn.  40,  1  N.  W.  255 91 

Dublin  Cotton-Oil  Co.  v.  Jarrard  (.Tex.  Civ.  App.)  40  S.  W.  531 49 

Dubuque  Wood  &  Coal  Ass'n  v.  City  and  County  of  Dubuque,  30  Iowa,  176  24 

Dudley  v.  Smith,  1  Camp.  167 179 

Duff  v.  Budd,  3  Brod.  &  B.  177 283 

Duffy  v.  Thompson,  4  E.  D.  Smith  (N.  Y.)  178 269 

Dufour  v.  Railroad  Co.,  67  Cal.  319,  7  Pac.  769 211 

Dugal  v.  City  of  Chippewa  Falls  (Wis.)  77  X.  W.  878 116 

Dugan  v.  Bridge  Co.,  27  Pa.  St.  303 ..320 

Duggan  v.  Railroad  Co.,  159  Pa.  St.  248,  28  Atl.  182 174 

Duggins  v.  Watson,  15  Ark.  118 58 

Duke  v.  Mayor,  etc.,  20  Ga.  635 449 

Du  Laurans  v.  Railroad  Co.,  15  Minn.  49  (Gil.  29) r 196 

Dunham  v.  Rackliff,  71  Me.  345 100 

Dunham  Towing  &  Wrecking  Co.  v.  Dandelin,  143  111.  409,  32  X.  E.  258.  .40,  41 

Dunhene's  Adni'x  v.  Trust  Co.,  1  Disn.  (Ohio)  257 403 

Dunlap  v.  Steamboat  Co.,  98  Mass.  371 271,  273 

Dunn  v.  McXamee,  59  X.  J.  Law,  498,  37  Atl.  61 119 

v.  Railroad  Co.,  58  Me.  187 187,  188,  202,  203 

v.  Society,  46  Ohio  St.  93,  18  X.  E.  496 455 

v.  Steamboat  Co.,  58  Hun,  461,  12  X.  Y.  Supp.  406 275 

Dunson  v.  Railroad  Co.,  3  Lans.  (X.  Y.)  265 225 

Duntley  v.  Railroad  Co.,  66  N.  H.  263,  20  Atl.  327 248 

Durgin  v.  Express  Co.,  66  X.  H.  277,  20  Atl.  328 247 

Durgy  Cement  &  Umber  Co.  v.  O'Brien,  123  Mass.  12 298 

Durham  v.  Musselrnan,  2  Blackf.  (Ind.)  96 309 

Durkin  v.  Sharp,  88  X.  Y.  225 91 

Dush  v.  Fitzhugh,  2  Lea  (Tenn.)  307 42,  80 

Dutton  v.  Gerrish,  9  Cush.  (Mass.)  89 315 

Duval  v.  Hunt,  34  Fla.  85,  15  South.  876 152 

Duvall  v.  Railroad  Co.,  105  Mich.  386,  63  N.  W.  437 337 

Duvenick  v.  Railroad  Co.,  57  Mo.  App.  550 253 

Dwindle  v.  Railroad  Co.,  120  X.  Y.  117,  24  X.  E.  319 155 

Dwyer  v.  Express  Co.,  82  WTis.  307,  52  X.  W.  304 133,  151 

v.  Railway  Co.,  84  Iowa,  479,  51  X.  W.  244 405 

Dyer  v.  Munday  (1895)  1  Q.  B.  742,  14  Reports,  306 167 

v.  Railway  Co.,  71  X.  Y.  228 41,  59,  325 

Dyke  v.  Railway  Co.,  45  N.  Y.  113 254 

BAR.XEG.— 32 


498  CASES  CITED. 

E 

Page 

Eads  v.  Railway  Co.,  43  Mo.  App.  536 175 

Eagle  v.  White,  6  Whart.  (Pa.)  505 282 

Eagle  Const.  Co.  v.  Railroad  Co.,  71  Mo.  App.  626 158 

Eames  v.  Railroad  Co.,  98  Mass.  560 341,  342 

Earhart  v.  Youngblood,  27  Pa.  St.  331 365 

Earing  v.  Lansingh,  7  Wend.  (N.  Y.)  185. 31 

Earl  v.  Van  Alstine,  8  Barb.  (N.  Y.)  630 361,  362 

Earle  v.  Hall,  2  Mete.  (Mass.)  353 300 

Earnest  v.  Express  Co.,  1  Woods,  573,  Fed.  Cas.  No.  4,248 230 

Earp  v.  Faulkner,  34  Law  T.  (N.  S.)  284 366 

Eason  v.  Railway  Co.,  65  Tex.  577 129 

Easterly  v.  Incorporated  Town  of  Irwin,  99  Iowa,  694,  68  N.  W.  919 444 

East  India  Co.  v.  Pullen,  2  Strange,  690 219 

Eastman  v.  Clackamas  Co.,  32  Fed.  24 456 

v.  Judkins,  59  N.  H.  576 385 

v.  Mfg.  Co.,  44  N.  H.  143 320 

v.  Meredith,  36  N.  H.  284 450.  454 

Bast  Saginaw  City  Ry.  Co.  v.  Bonn,  27  Mich.  503 67,  73 

East  St  Louis  Connecting  Ry.  Co.  v.  O'Hara,  49  111.  App.  282;    150  111.  580, 

37  N.  E.  917 6 

v.  Reames,  173  111.  582,  51  N.  E.  68 158 

East  Tennessee,  V.  &  G.  R.  Co.  v.  Fain,  12  Lea,  35 80 

v.  Hall,  90  Ga.  17,  16  S.  E.  91 18 

v.  Hesters,  90  Ga.  11,  15  S.  E.  828 18 

v.  Hunt,  15  Lea  (Tenn.)  261 288 

v.  Johnston,  75  Ala.  596 231,  23S 

v.  Kane,  92  Ga.  187,  18  S.  E.  18 155 

v.  Lockhart,  79  Ala.  315 180 

v.  Selcer,  7  Lea  (Tenn.)  557 344 

v.  Smith,  89  Tenn.  114,  14  S.  W.  1077 149 

Bast  Tennessee  &  G.  R.  Co.  v.  Montgomery,  44  Ga.  278 293 

v.  Nelson,  1  Cold.  (Tenn.)  272 235,  295 

v.  St.  John,  5  Sneed  (Tenn.)  524 76 

v.  Whittle,  27  Ga.  535 217 

East  Tennessee  &  V.  R.  Co.  v.  Rogers,  6  Heisk.  (Tenn.)  143 292.  293,  29.1 

East  Tennessee  &  W.  N.  C.  R.  Co.  v.  Collins,  85  Tenn.  227,  1  S.  W.  883. ..  149 

Eastwood  v.  Mining  Co.,  86  Hun,  91,  34  N.  Y.  Supp.  196 102 

Eaton  v.  Cripps,  94  Iowa,  176,  62  N.  W.  687 39 

V.  Railroad  Co.,  11  Allen  (Mass.)  500,  505 19,  25.  26,  54,  60,  206 

59  Me.  520,  532,  534 161 

129  Mass.  364 325 

57  N.  Y.  382 187,  191 

v.  Winnie,  20  Mich.  157 366 

Eck  v.  Hocker,  75  111.  App.  641 362 

Eckert  v.  Transfer  Co.,  2  Mo.  App.  36 168,  169 

Eckles  v.  Railway  Co.,  72  Mo.  App.  296 293 

Eddy,  The,  5  Wall.  481 285 


CASES  CITED  499 

Page 

Eddy  v.  Harris,  78  Tex.  661,  15  S.  W.  107 210 

v.  Lafayette,  163  U.  S.  456,  16  Sup.  Ct.  1082 355 

Eden  v.  Railroad  Co.,  14  B.  Mon.  (Ky.)  204 391 

Edgar  v.  Castello,  14  S.  C.  20 401 

Edgerly  v.  Railroad  Co.  (N.  H.)  36  Atl.  558 183 

Edgerton  v.  O'Neil,  4  Kan.  App.  73,  46  Pac.  206 80 

Edison  v.  Railway  Co.  (Miss.)  23  South.  369 185 

Edmondson  v.  Railway  Co.,  49  S.  W.  200,  448 147 

Kclsall  v.  Transportation  Co.,  50  N.  Y.  661 253 

Edward  Hines  Lumber  Co.  v.  Ligas,  68  111.  App.  523 128 

172  111.  315.  50  N.  E.  225 90 

Edwards  v.  Bonner,  12  Tex.  Civ.  App.  236,  33  S.  W.  761 357 

v.  Jones,  67  How.  Prac.  177 156 

v.  Railway  Co.,  L.  R.  5  C.  P.  445 173 

81  Mich.  364,  45  N.  W.  827 199 

98  N.  Y.  245 305 

v.  Sherratt,  1  East,  604 231 

Efron  v.  Car  Co.,  59  Mo.  App.  641 278 

Egan  v.  Railroad  Co.,  12  App.  Div.  556,  42  N.  Y.  Supp.  188 133 

E.  H.  Fittler,  The,  1  Low,  114,  Fed.  Cas.  No.  4,311 284,  285 

Ehnicke  v.  Porter,  45  Minn.  338,  47  N.  W.  1066 120 

E.  H.  Pray,  The,  27  Fed.  474 298 

Ehrgott  v.  Mayor,  96  N.  Y.  264 14,  54 

Ehrmann  v.  Railroad  Co.,  23  App.  Div.  21,  48  N.  Y.  Supp.  379 64 

Ehrsam,  In  re,  37  App.  Div.  272,  55  N.  Y.  Supp.  942 438 

Eichel  v.  Senhenn,  2  Ind.  App.  208,  28  N.  E.  193 40 

Eichengreen  v.  Railroad  Co.,  96  Tenn.  229,  34  S.  W.  219 159,  173 

Eilert  v.  Railroad  Co.,  48  Wis.  606,  4  N.  W.  769 326 

Eingartner  v.  Steel  Co.,  94  Wis.  70,  68  N.  W.  664 151 

Eisenberg  v.  Railway  Co.,  33  Mo.  App.  85 50 

Elder  v.  Coal  Co.,  157  Pa.  St.  490,  27  Atl.  545,  33  Wkly.  Notes  Cas.  333 19 

Elkington  v.  Holland,  9  Mees.  &  W.  659 373,  374 

Elkins  v.  Railroad  Co.,  115  Mass.  190 336 

Ell  v.  Railroad  Co.,  1  N.  D.  336,  48  N.  W.  222 133,  149 

Ellet  v.  Railway  Co.,  76  Mo.  518 86 

Elliott  v.  Aiken,  45  N.  H.  30 315 

v.  Carlson,  54  111.  App.  470 49,  306,  307 

v.  City  of  Philadelphia,  75  Pa.  St.  347 443,  450 

v.  Concord,  27  N.  H.  204 26 

v.  Pray,  10  Allen  (Mass.)  378 316 

v.  Railroad  Co..  53  Hue,  78,  6  N.  Y.  Supp.  363 198 

v.  Rossell,  10  Johns.  (N.  Y.)  1 216,  222 

Ellis  v.  City  of  Lewiston,  89  Me.  60,  35  Atl.  1016 432,  434 

v.  Gas  Consumers'  Co.,  23  Law  J.  Q.  B.  42,  2  El.  &  Bl.  767 163 

V.  Railroad  Co.,  2  Hurl.  &  N.  424 35 

2  Ired.  (N.  C.)  138 353 

24  N.   C.  138 357 

Ellsworth  v.  Ellingson,  96  Iowa,  154,  64  N.  W.  774 350 

v.  Railway  Co.  (Iowa)  63  N.  W.  584 193 


500  CASES  CITED. 

Page 

Elmer  v.  Locke,  135  Mass.  575 151 

Elinore  v.  Railroad  Co.,  23  Conn.  457 ". 292,  294 

v.  Sands,  54  N.  Y.  512 198- 

Ely  v.  City  of  Rochester,  26  Barb.  (N.  Y.)  133 320 

v.  Railroad  Co.,  88  Hun,  323,  34  N.  Y.  Supp.  739 102 

v.  Steamboat  Co.,  53  Barb.  (N.  Y.)  207 2Stt 

Embry  v.  Railroad  Co.  (Ky.)  36  S.  W.  1123 51 

Emery  v.  City  of  Lowell,  104  Mass.  13 430,  431 

v.  Exposition,  56  Minn.  460,  57  N.  W.  1132 50 

Emiliusen  v.  Railroad  Co.,  30  App.  Div.  203,  51  N.  Y.  Supp.  606 217 

Emmerson  v.  Fay,  94  Va.  60,  26  S.  E.  386 161 

Emory  v.  Addis,  71  111.  273 400 

Empire  Transp.  Co.  v.  Mining  Co.,  63  Pa.  St.  14 212 

v.  Wallace,  68  Pa.  St.  302 234 

Engel  v.  Eureka  Club,  137  N.  Y.  100,  32  N.  E.  1052 166- 

England  v.  Railroad  Co.,  153  Mass.  490,  27  N.  E.  1 180 

English  v.  Canal  Co.,  66  N.  Y.  454 186 

Ennis  v.  Myers,  29  App.  Div.  382,  51  N.  Y.  Supp.  550 31 

Entwhistle  v.  Feighner,  60  Mo.  214 41£ 

Erb  v.  Morasch  (Kan.  App.)  54  Pac.  323 416 

Erdman  v.  Steel  Co.,  95  Wis.  6,  69  N.  W.  993 121 

Erickson  v.  Railroad  Co.,  41  Minn.  500,  43  N.  W.  332 103 

Erie  City  v.  Schwingle,  22  Pa.  St.  384 42ft 

Erie  Ry.  Co.  v.  Wilcox,  84  111.  239 232,  238,  244,  295 

Erie  School  Dist.  v.  Fuess,  98  Pa.  St.  600 447 

Ernst  v.  Railroad  Co.,  35  N.  Y.  9 359 

39  X.  Y.  61 332 

Evans  v.  Railroad  Co.,  Ill  Mass.  142 234,  262,  266 

11  Mo.  App.  463 200 

Evansich  v.  Railway  Co.,  57  Tex.  126 69 

Evanston  v.  Gunn,  99  U.  S.  660 435 

Evansville  &  C.  R.  Co.  v.  Duncan,  28  Ind.  441 193 

v.  Hiatt,  17  Ind.  102 85 

v.  Lowdermilk,  15  Ind.  320 330 

v.  Wolf,  59  Ind.  89 66 

Evansville  &  I.  R.  Co.  v.  Gilmore,  1  Ind.  App.  468,  27  N.  E.  992 185 

Evansville  &  R.  R.  Co.  v.  Barnes,  137  Ind.  306,  36  N.  E.  1092 176 

v.  Maddux,  134  Ind.  571,  33  N.  E.  345 171 

Evansville  &  T.  H.  R.  Co.  v.  Keith,  8  Ind.  App.  57,  35  N.  E.  296 280 

Evarts  v.  Railroad  Co.,  56  Minn.  141,  57  N.  W.  459 38 

Everett  v.  Express  Co.,  46  Ga.  303 231 

v.  Flume  Co.,  23  Cal.  225 319 

Ewald  v.  Railway  Co.,  70  Wis.  420,  36  N.  W.  12 171 

Ewan  v.  Lippincott,  47  N.  J.  Law,  192 128,  129.  148 

Ewart  v.  Street,  2  Bailey  (S.  C.)  157 226,  228 

Ewell  v.  Railway  Co.,  29  Fed.  57 420,  421 

Ewen  v.  Railway  Co.,  38  Wis.  613 410,  416 

Ewing  v.  Goode,  78  Fed.  442 376,  379 

Express  Co.  v.  Kountze,  8  Wall.  342 230 


CASES  CITED.  501 

Pag* 

Exton  v.  Railroad  Co.  (N.  J.  Sup.)  42  A.  486 207 

Eyre  v.  Jordan,  111  Mo.  424,  19  S.  W.  1095 317 


F 

Fabens  v.  Bank,  23  Pick.  (Mass.)  330 387 

Fahn  v.  Reichart,  8  Wis.  255 349,  350 

Fair  v.  City  of  Philadelphia,  88  Pa.  St.  309 449 

Fairbank  v.  Haentzsche,  73  111.  236 113 

Fairbanks  v.  Kerr,  70  Pa.  St.  86 18 

Fairchild  v.  Bentley,  30  Barb.  (N.  Y.)  147 363 

Fairfax  v.  Railroad  Co.,  67  N.  Y.  11 289 

Fairmouut  &  A.  S.  P.  Ry.  Co.  v.  Stutler,  54  Pa.  St.  375 181 

Faison  v.  Railway  Co.,  69  Miss.  569,  13  South.  37 296 

Fallen  v.  Boston,  3  Allen  (Mass.)  38 323 

Falls  River  &  Machine  Co.  v.  Car  Co.,  6  Ohio  Dec.  85,  4  Ohio  N.  P.  26 278 

Falvey  v.  Railroad  Co.,  76  Ga.  597 295 

Faren  v.  Sellers,  39  La.  Ann.  1011,  3  South.  363 147 

Faris  v.  Hoberg,  134  Ind.  269,  33  N.  E.  1028 50 

Farmers'   &  Mechanics'   Bank  v.  Transportation  Co.,   16  Vt.  52,   23  Vt. 

186    260,  286 

Farinington  Mercantile  Co.  v.  Railroad  Co.,  1G6  Mass.  154,  44  N.  E.  131 ...  296 

Faruham  v.  Railroad  Co.,  55  Pa,  St.  53 219 

Farrant  v.  Barnes,  11  C.  B.  (N.  S.)  553 369 

Farwell  v.  Railroad  Co.,  4  Mete.  (Mass.)  49 124,  126 

Fassett  v.  Roxbury,  55  Vt.  552 86 

Fath  v.  Railway  Co.,  39  Mo.  App.  447 104 

F^aucher  v.  Wilson  (N.  H.)  38  Atl.  1002 220,  234 

Faulkner  v.  Hart,  82  N.  Y.  413 254,  287 

44  N.  Y.  Super.  Ct.  471 ' 216 

v.  Railway  Co.,  49  Barb.  (N.  Y.)  324 97 

Fay  v.  Railway  Co.,  30  Minn.  231,  15  N.  W.  241 91,  141 

Feiber  v.  Telegraph  Co.  (Com.  PI.)  3  N.  Y.  Supp.  116 284- 

Feige  v.  Railroad  Co.,  62  Mich.  1,  28  N.  W.  685 239,  258,  2S7 

Feinberg  v.  Railroad  Co.,  52  N.  J.  Law,  451,  20  Atl.  33 227 

Feinstein  v.  Jacobs,  15  Misc.  Rep.  474,  37  N.  Y.  Supp.  345 316 

Felder  v.  Railroad  Co.,  2  McMul.  (S.  C.)  403 79 

Felice  v.  Railroad  Co.,  14  App.  Div.  345,  43  N.  Y.  Supp.  922 106 

Fell  v.  Railroad  Co.,  44  Fed.  248 185 

Fellowes  v.  City  of  New  Haven,  44  Conn.  240 438 

Felska  v.  Railroad  Co.,  152  N.  Y.  339,  46  N.  E.  613 79 

Felton  v.  Aubrey,  20  C.  C.  A.  436,  74  Fed.  350 68,  327 

v.  Railroad  Co.,  69  Iowa,  577,  29  N.  W.  618 207 

Fendersou  v.  Railroad  Co.,  56  N.  J.  Law,  708,  31  Atl.  767 90 

Feneran  v.  Mfg.  Co.,  20  App.  Div.  574,  47  N.  Y.  Supp.  284 170 

Fenneman  v.  Holden,  75  Md.  1,  22  Atl.  1049 75 

Fenner  v.  Railroad  Co.,  44  N.  Y.  505 282,  287 

Fera  v.  Child,  115  Mass.  32 315 


502  CASES  CITED. 

Pagfr 

Ferguson  v.  Railroad  Co.,  6  App.  D.  C.  523 401 

77  Ga.  102 G9,  71 

Fernandas  v.  Railroad  Co.,  52  Cal.  45 87 

Ferren  v.  Railroad  Co.,  143  Mass.  197,  9  N.  E.  608 93 

Ferris  v.  Hernsheim  (La.)  24  South.  771 9Q,  93- 

Ferry  v.  Railway  Co.,  118  N.  Y.  497,  23  N.  E.  822 181 

Field  v.  City  of  Des  Moines,  39  Iowa,  575 452 

v.  Railroad  Co.,  32  N.  Y.  339 356,  357 

Fifield  v.  Insurance  Co.,  47  Pa.  St.  166 229- 

Filbert  v.  Canal  Co.,  121  N.  Y.  207,  23  N.  E.  1104 132,  133 

Files  v.  Railroad  Co.,  149  Mass.  204,  21  N.  E.  311 19O 

Finalyson  v.  Milling  Co.,  14  C.  C.  A.  492,  67  Fed.  507 94 

Finch  v.  Board,  30  Ohio  St.  37 455- 

Fink  v.  Garman,  40  Pa.  St  95 399 

Finley  v.  Langston,  12  Mo.  120 350> 

v.  Railway  Co.,  71  Minn.  471,  74  N.  W.  174 61 

Finn  v.  Railroad  Corp.,  102  Mass.  283 232 

v.  Railway  Co.,  86  Mich.  74,  48  N.  W.  696 181 

Finnegau  v.  Railway  Co.,  48  Minn.  378,  51  N.  W.  122 179* 

Finseth  v.  Railway  Co.,  32  Or.  1,  51  Pac.  84 208- 

First  Nat.  Bank  v.  Railroad  Co.,  20  Ohio  St.  259 275 

v.  Shaw,  61  N.  Y.  283 253 

Firth  v.  Iron  Co.,  3  C.  P.  Div.  254 310- 

Fish  v.  Chapman,  2  Ga.  349 218,  260 

v.  Clark,  49  N.  Y.  122 216- 

v.  Dodge,  4  Denio  (N.  Y.)  311 313 

v.  Kelly,  17  C.  B.  (N.  S.)  194 374 

Fisher  v.  City  of  Boston,  104  Mass.  87 441,  443,  453 

v.  Clark,  41  Barb.  (N.  Y.)  329 366- 

v.  Clisbee,  12  111.  344 216 

v.  Railway  Co.,  34  Hun  (N.  Y.)  433 17a 

22  Or.  533,  30  Pac.  429 149- 

39  W.  Va.  366,  19  S.  E.  578 206 

V.  Rankin,  78  Hun,  407,  29  N.  Y.  Supp.  143 161 

v.  Thirkell,  21  Mich.  1-20 314 

Fisk  v.  Newton,  1  Denio  (N.  Y.)  45 224,  282,  283 

Fitch  v.  Railroad  Co.,  45  Mo.  322 357,  359- 

Fitch  burg  R.  Co.  v.  Nichols,  29  C.  C.  A.  500,  85  Fed.  945 84,  202 

Fitchburg  &  W.  R.  Co.  v.  Hanna,  6  Gray  (Mass.)  539 279- 

Fitzgerald  v.  Honkomp,  44  111.  App.  365 , 133 

v.  Paper  Co.,  155  Mass.  155,  29  N.  E.  464 114,  122 

v.  Railroad  Co.,  37  App.  Div.  127,  55  X.  Y.  Supp.  1124 110 

29  Minn.  336,  13  X.  W.  168 63,  70- 

v.  Town  of  Weston,  52  Wis.  354,  9  X.  W.  13 76,  83 

Fitzhenry  v.  Traction  Co.  (N.  J.  Sup.)  42  Atl.  416 401 

Fitzpatrick  v.  Mfg.  Co.  (N.  J.  Sup.)  39  Atl.  675 50,  306- 

Flaherty  v.  Railway  Co.,  39  Minn.  328,  40  N.  W.  160 207 

Flanagan  v.  Asphalt  Co.,  37  App.  Div.  476,  56  N.  Y.  Supp.  18 306 

Flanders  v.  Meath,  27  Ga.  358 r<5> 


CASES  CITED.  503 

Page 

Flannagan  v.  Railway  Co.,  45  Wis.  98,  50  Wis.  462,  7  N.  W.  337 94,  111 

40  W.  Va.  436,  21  S.  E.  1028 150 

FJansburg  v.  Basin,  3  111.  App.  531 364,  365 

Flatley  v.  Railroad  Co.,  9  Heisk.  (Tenn.)  230 417 

Fleet  v.  Uollenkerup,  13  B.  Mon.  (Ky.)  219 30,  370 

Fleming  v.  Beck,  48  Pa.  St.  309 13 

Flemming  v.  Railroad  Co.,  49  Cal.  253 37,  335 

Fletcher  v.  Braddick,  2  Bos.  &  P.  (N.  R.)  182 159 

v.  Railroad  Co.,  1  Allen  (Mass.)  9 2,  323 

108  U.  S.  135,  18  Sup.  Ct.  35 158,  324 

v.  Rylands,  L.  R.  1  Exch.  265,  279,  L.  R.  3  H.  L.  330 319,  349 

Flike  v.  Railroad  Co.,  53  N.  Y.  54.9 98 

Fliun  v.  Railroad  Co.,  1  Houst.  (Del.)  469,  502 212,  238 

Flint  v.  Transportation  Co.,  6  Blatchf.  158,  Fed.  Cas.  No.  4,873 207 

34  Conn.  554 173,  192 

Flint  &  P.  M.  Ry.  Co.  v.  Lull,  28  Mich.  510 347 

v.  Weir,  37  Mich.  Ill 267 

Flori  v.  City  of  St.  Louis,  3  Mo.  App.  231 61 

Florida  C.  &  P.  R.  Co.  v.  Foxworth  (Fla.)  25  South.  338 394,  406,  407 

Florida  Ry.  &  Nav.  Co.  v.  Webster,  25  Fla.  394,  5  South.  714 191 

Florida  Southern  Ry.  Co.  v.  Hirst,  30  Fla.  1,  11  South.  506 36 

Floyd  v.  Boyard,  6  Watts  &  S.  (Pa.)  75 297 

Flynn  v.  Fogarty,  106  111.  203 400 

v.  Hatton,  43  How.  Prac.  (N.  Y.)  333 315 

Fogarty  v.  Finlay,  10  Cal.  239 386 

Foley  Y.  Horseshoe  Co.,  115  Cal.  184,  47  Pac.  42 146 

v.  Light  Co.,  54  N.  J.  Law,  411,  24  Atl.  487 112,  114,  116 

v.  Railway  Co.,  64  Iowa,  644,  21  N.  W.  124 147 

48  Mich.  622,  12  N.  W.  879 107 

Tollman  v.  City  of  Mankato,  35  Minn.  522,  29  N.  W.  317 57 

Fonda  v.  Railway  Co.,  71  Minn.  438,  74  N.  W.  166,  168 101,  104 

Fones  v.  Phillips,  39  Ark.  17 105 

Fonseca  v.  Steamship  Co.,  153  Mass.  553,  27  N.  E.  665 253,  258 

Forbes  v.  Board,  28  Fla.  26,  9  South.  862 443 

v.  Snyder,  94  111.  374 419 

Force  v.  Gregory,  63  Conn.  167,  27  Atl.  1116 377 

Ford  v.  Mitchell,  21  Ind.  54 280 

v.  Monroe,  20  Wend.  (N.  Y.)  210 391 

v.  Pulp  Co.  (Mass.)  52  N.  E.  1065 105 

v.  Railroad  Co.,  110  Mass.  240,  260 90,  91,  137,  138 

v.  Town  of  Braintree,  G4  Yt.  144,  33  Atl.  633 429 

v.  Umatilla  Co.,  15  Or.  313,  16  Pac.  33 77 

Fordyce  v.  Dillingham  (Tex.  Civ.  App.)  23  S.  W.  550 180 

v.  McCants,  51  Ark.  509,  11  S.  W.  694 410 

55  Ark.  384,  18  S.  W.  371 411 

Forrester  v.  Railroad  Co.,  92  Ga.  699,  19  S.  E.  811 296 

Ft.  Scott,  W.  &  W.  Ry.  Co.  v.  Sparks,  55  Kan.  288,  39  Pac.  1032 191,  196 

Fortune  Y.  Trainor,  65  Hun,  619,  19  N.  Y.  Supp.  598 172,  174 

Ft.  Wayne,  J.  &  S.  R.  Co.  v.  GildersleeYe,  33  Mich.  133 121 


504  CASES   CITED. 

Page 

Forward  v.  Pittard,  1  Term  R.  27,  29,  33 218,  22G,  227,  229,  230 

Fosburg  v.  Fuel  Co.,  93  Iowa,  54,  61  N.  W.  400 90,  91,  93,  147 

Foss  v.  Railway  Co.,  33  Minn.  392,  23  N.  W.  553 211 

Foster  v.  Bank,  17  Mass.  479 169 

v.  Peyser,  9  Cusli.  (Mass.)  242 315 

,v.  Pusey,  S  Houst  168,  14  Atl.  545 14.6 

v.  Railway  Co.,  115  Mo.  165,  21  S.  W.  916 148 

Foulkes  v.  Railway  Co.,  4  C.  P.  Div.  267,  5  C.  P.  Div.  157 189 

Fowle  v.  Council,  3  Pet.  398,  409 450 

Fowler  v.  Railroad  Co.,  18  W.  Va.  579 , 42,  84 

v.  Steam  Co.,  87  N.  Y.  190 237 

v.  Town  of  Strawberry  Hill,  74  Iowa,  644,  38  N.  W.  521 447 

Fowlkes  v.  Railroad  Co.,  5  Baxt.  (Tenn.)  663 398,  421 

Fox  v.  Buffalo  Park,  21  App.  Div.  321,  47  N.  Y.  Supp.  788 311 

v.  City  of  Chelsea,  171  Mass.  297,  50  N.  E.  622 434 

v.  City  of  Richmond  (Ky.)  40  S.  W.  251 444 

v.  Jones  (Tex.  App.)  14  S.  W.  1007 373 

v.  Railway  Co.,  118  Cal.  55,  50  Pac.  25 64 

148  Mass.  220,  19  N.  E.  222 234,  237 

v.  Sackett,  10  Allen  (Mass.)  535 359 

v.  Thibault,  33  La.  Ann.  33 386 

Frace  v.  Railroad  Co.  (Sup.)  22  N.  Y.  Supp.  958;  143  X.  Y.  182,  38  N.  E.  102  358 

Fraker  v.  Railway  Co.,  32  Minn.  54,  19  N.  W.  349 141 

France  v.  Railroad  Co.,  88  Hun,  318,  34  N.  Y.  Supp.  408 92 

Francis  v.  Cockrell,  L.  R.  5  Q.  B.  184 305 

v.  Railroad  Co.,  25  Iowa,  60 288 

Francisco  v.  Aguirre,  94  Cal.  180,  29  Pac.  495 382 

v.  Railroad  Co.,  78  Hun,  13,  29  N.  Y.  Supp.  247 205 

Frandsen  v.  Railroad  Co.,  36  Iowa,  372 147 

Frank  v.  Railway  Co.,  57  Mo.  App.  181 287 

9  Pa.  Super.  Ct.  129 233 

Frankford  &  B.  Turnpike  Co.  v.  Railroad  Co.,  54  Pa.  St.  345 2,  353,  355 

Frankhouser  v.  Cannon,  50  Kan.  621,  32  Pac.  379 383 

Franklin  v.  Railway  Co.,  3  Hurl.  &  X.  211,  4  Jur.  (X.  S.)  565 411 

37  Minn.  409,  34  X.  W.  898 151 

v.  Smith,  21  Wend.  (N.  Y.)  624 387 

Fraser  v.  Freeman,  56  Barb.  (N.  Y.)  234 393 

v.  Lumber  Co.,  45  Minn.  235,  47  N.  W.  785 141 

v.  Schroeder,  163  111.  4,59,  45  N.  E.  288 136 

v.  Tupper,  29  Vt.  409 349,  350 

Frassi  v.  McDonald,  122  Cal.  400,  55  Pac.  139,  772 161 

Frauenthal  v.  Gaslight  Co.,  67  Mo.  App.  1 68 

Fraysher  v.  Railway  Co.,  66  Mo.  App.  573 345 

Frazee  v.  Stott  (Mich.)  79  X.  W.  896 137 

Frazier  Y.  Railroad  Co.,  101  Ga.  77,  28  S.  E.  662 404 

Frederick  v.  City  of  Columbus,  58  Ohio  St.  538,  51  N.  E.  35 426,  443,  450 

v.  Railroad  Co.,  37  Mich.  342 198 

Fredericks  v.  Railroad  Co.,  46  La.  Ann.  1180,  15  South.  413 49 

Freedon  v.  Railroad  Co.,  24  App.  Div.  306,  48  N.  Y.  Supp.  584 192 


CASES   CITED.  505 

Page 

freeman  v.  Newton,  3  E.  D.  Smith  (N.  Y.)  246 280 

JFremantle  v.  Railroad  Co.,  10  C.  B.  (N.  S.)  89 35G,  359 

.Fremont,  E.  &  M.  V.  R.  Co.  v.  Waters,  50  Neb.  592,  70  N.  W.  225 290 

.French  v.  Aulls,  72  Hun,  442,  25  N.  Y.  Supp.  188 95 

v.  Railroad  Co.,  43  N.  Y.   108   244 

v.  Railroad  Co.,   116  Mass.  537 327 

v.  Transportation  Co.,  134  Mass.  288 233 

V.  Vix,  143  N.  Y.  90,  37  N.  E.  612 166 

Trick  v.  Railway  Co.,  75  Mo.  542,  595 31,  63,  66 

Friedman  v.  McGowan  (Del.  Super.)  42  Atl.  723 365 

v.  Mathes,  8  Heisk.  (Tenn.)  488 380 

Friend  v.  Woods,  6  Grat  (Va.)  189 227 

Frier  v.  Canal  Co.,  86  Hun,  464,  33  N.  Y.  Supp.  886 356 

Frink  v.  Coe,  4  G.  Greene  (Iowa)  555 203 

v.  Potter,  17  111.  406 203 

v.  Scovel,  2  Day  (Conn.)  480  382 

Frisby  v.  Town  of  Marshall,  119  N.  C.  570,  26  S.  E.  251 437 

Fritz  v.  Light  Co.  (Utah)  56  Pac.  90 /. 91 

v.  Railroad  Co.,  22  Minn.  404  348 

Frost  v.  Inhabitants,  12  Allen  (Mass.)  85 75 

v.  Railroad  Co.,  10  Allen  (Mass.)  387 305,  310 

64  N.  H.  220,  9  Atl.  790 307 

Fuller  v.  Benett,  2  Hare,  402 56 

v.  Bradley,  25  Pa.  St.  120 216 

v.  Jewett,  80  N.  Y.  46  91 

v.  Railroad  Co.,  21  Conn.  557,  570  216 

Fulton  v.  Railway  Co.,  17  U.  C.  Q.  B.  428 201 

Fultz  v.  Wycoff,  25  Ind.  321   366 

Furman  v.  Railroad  Co.,  57  Iowa,  42,  10  N.  W.  272;    62  Iowa,  395,  17  N. 

W.  598;    68  Iowa,  219,  26  N.  W.  83;    81  Iowa,  540,  46  N.  W.  1049 232 

IFurstenheirn  v.  Railroad  Co.,  9  Heisk.  (Tenn,.)  238 182 


G 

•Gaar,  Scott  &  Co.  v.  Wilson,  21  Ind.  App.  91,  51  X.  E.  502 110 

Gaffney  v.  Railroad  Co.,  15  R.  I.  456,  7  Atl.  284 132,  149 

•Gage  v.  Tirrell,  9  Allen  (Mass.)  299 216 

Gahagan  v.  Aerinoter  Co.,  67  Minn.  252,  69  N.  W.  914 156 

v.  Railroad  Co.,  1  Allen  (Mass.)  187 335 

•Gaines  v.  Insurance  Co.,  28  Ohio  St.  418 220,  239,  287 

Galaviz  v.  Railroad  Co.  (Tex.  Civ.  App.)  38  S.  W.  234 191,  196 

Galena  &  C.  U.  R.  Co.  v.  Fay,  16  111.  558. .  .* 203 

v.  Loomis,  13  111.  548 340 

Gallena  v.  Railroad  Co.,  13  Fed.  116 169 

•Galligan  v.  Mfg.  Co.,  143  Mass.  527,  10  N.  E.  171 306 

-Galloway  v.  Railway  Co.,  87  Iowa,  458,  54  N.  W.  447. 3 

56  Minn.  346,  57  N.  W.  1058 324 

<Jalveston,  H.  &  H.  Ry.  Co.  v.  Moore,  59  Tex.  64 G 7,  71,  395 


506  CASES  CITED. 

Page 

Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Burnett  (Tex.  Civ.  App.)  42  S.  W.  314 4ia 

v.  Clark  (Tex.  Civ.  App.)  51  S.  W.  276 OS 

v.  Cody  (Tex.  Civ.  App.)  50  S.  W.  135 414 

v.  Croskell,  6  Tex.  Civ.  App.  160,  25  S.  W.  486 25,  20- 

v.  Garteiser,  9  Tex.  Civ.  App.  456,  29  S.  W.  930 *. . .  .56,  32* 

v.  Gormley  (Tex.  Civ.  App.)  27  S.  W.  1051 90,  91 

v.  Henning  (Tex.  Civ.  App.)  39  S.  W.  302 99- 

v.  Kutac,  78  Tex.  473,  13  S.  W.  327 61 

v.  McCrary  (Tex.  Civ.  App.)  43  S.  W.  275 11& 

v.  McMonigal  (Tex.  Civ.  App.)  25  S.  W.  341 19£ 

v.  Masterson  (Tex.  Civ.  App.)  51  S.  W.  1091 129- 

v.  Matula,  79  Tex.  577.  15  S.  W.  573 405 

v.  Parsley,  6  Tex.  Civ.  App.  150,  25  S.  W.  64 189- 

v.  Polk  (Tex.  Civ.  App.)  28  S.  W.  353 356- 

v.  Tuckett  (Tex.  Civ.  App.)  25  S.  W.  150 235- 

v.  Turner  (Tex.  Civ.  App.)  23  S.  W.  83 184 

v.  Wessendorf  (Tex.  Civ.  App.)  39  S.  W.  132 347 

Galvin  v.  City  of  New  York,  112  N.  Y.  223,  19  X.  E.  675 418- 

Gambert  v.  Hart,  44  Cal.  542 372,  374,  375 

Gandy  v.  Jubber,  5  Best  &  S.  485 313- 

Gangawer  v.  Railroad  Co.,  168  Pa.  St.  265,  32  Atl.  21 332 

Ganley  v.  Hall,  168  Mass.  513,  47  N.  E.  416 317 

Gannon  v.  Railroad  Co.,  112  Mass.  234 128 

Gardner  v.  City  of  New  London,  63  Conn.  267,  28  Atl.  42 437 

v.  Friederich,  25  App.  Div.  521,  49  N.  Y.  Supp.  1077 19,  25 

v.  Heartt,  3  Denio  (N.  Y.)  232,  236 2" 

v.  Northampton  Co.,  51  Conn.  143  178,  187,  194,  195 

v.  Railroad  Co.,  94  Ga.  538,  19  S.  E.  757 178 

150  U.  S.  349,  14  Sup.  Ct  140 151 

v.  Smith,  7  Mich.  410  347 

Garland  v.  Towne,  55  N.  H.  55 303 

Gannon  v.  Inhabitants,  38  Me.  443 39,  5$ 

Garraux  v.  Council,  53  S.  C.  575,  31  S.  E.  597 439= 

Garrett  v.  Railway  Co.,  36  Iowa,  121 8T 

Garrick  v.  Railroad  Co.,  53  S.  C.  448,  31  S.  E.  334 405 

Garside  v.  Navigation  Co.,  4  Term    R.  581 280 

Gartland  v.  Railway  Co.,  67  111.  494,  498 118,  130- 

Gary  v.  Express  Co.  (Tex.  Civ.  App.)  40  S.  W.  845 283- 

Gashweiler  v.  Railway  Co.,  83  Mo.  112 288 

Gass  v.  Railroad  Co.,  99  Mass.  220 291 

Gates  v.  Ryan,  37  Fed.  154 285 

v.  State,  128  N.  Y.  221,  28  N.  E.  373 112" 

Gatliffe  v.  Bourne,  4  Bing.  (N.  C.)  314,  329 284,  286 

Gautret  v.  Egerton,  L.  R.  2  C.  P.  371 211,  310- 

Gavin  v.  City  of  Chicago,  97  111.  66 66- 

Gay  v.  Winter,  34  Cal.  153 394 

Gedney  v.  Kingsley,  62  Hun,  620,  16  N.  Y.  Supp.  792 378- 

Gee  v.  Railroad  Co.,  L.  R.  8  Q.  B.  161,  174 54 

Geibel  v.  Elwell,  19  App.  Div.  285,  46  N.  Y.  Supp.  76 6T 


CASES  CITED.  507 

Page 

Geiselman  v.  Scott,  25  Iowa,  86   379 

Geismer  v.  Railway  Co.,  102  X.  Y.  563,  7  X.  E.  828 229,  235 

General  Steam  Nav.  Co.  v.  Navigation  Co.,  L.  R.  3  Exch.  330 159 

Generous,  The,  2  Dod.  322 221 

George  v.  Railway  Co.,  57  Mo.  App.  358 * 219 

51  Wis.  603,  8  N.  W.  374 420 

George  &  Richard,  The,  L.  R.  3  Adm.  &  Ecc.  466,  24  Law  T.  (X.  S.)  717,  20 

Wkly.  Rep.  245 404 

Georgia,  C.  &  N.  Ry.  Co.  v.  Watkins,  97  Ga.  381,  24  S.  E.  34 68 

Georgia  Pac.  R.  Co.  v.  Fullerton,  79  Ala.  298 36 

v.  Lee,  92  Ala.  262,  9  South.  230 6 

Georgia  R.  Co.  v.  Cole,  68  Ga.  623 291 

v.  Pittman,  73  Ga.  325 : 415 

Georgia  Railroad  &  Banking  Co.  v.  Forrester,  96  Ga.  428,  23  S.  E.  416 296- 

v.  Garr,  57  Ga.  277   414 

v.  Keener,  93  Ga.  808,  21  S.  E.  287 219,  249 

v.  McCurdy,  45  Ga.  288 180 

v.  Miller,   90  Ga.  571,   16   S.   E.   939 146 

v.  Oaks,  52  Ga.  410 4ia 

r.  Rhodes,  56  Ga.  645  41 

v.  Smith,  128  U.  S.  174,  9  Sup.  Ct.  47 201 

Geraty  v.  Stern,  30  Hun  (X.  Y.)  426 171 

Gerhard  v.  Xeese,  36  Tex.  635 235 

German  v.  Railroad  Co.,  38  Iowa,  127 .252,  262 

Germania  Ins.  Co.  v.  The  Lady  Pike,  8  Am.  Law  Reg.  (X.  S.)  614,  Fed.  Cas. 

Xo.  7.985   226 

Geroux's  Adm'r  v.  Graves,  62  Vt.  280,  19  Atl.  987 403- 

Gheens  v.  Golden,  90  Ind.  427 86 

G.  H.  Hammond  Co.  v.  Mason,  12  Ind.  App.  469,  40  N.  E.  642 90 

Gibbon  v.  Paynton,  4  Burrows,  2298 231,  259 

Gibbons  v.  Railway  Co.,  155  Pa.  St.  279,  26  Atl.  417 40 

v.  Williams,  135  Mass.  333 70 

Gibbs  v.  City  of  Hannibal,  82  Mo.  143 401 

v.  Docks,  3  Hurl.  &  N.  164  426 

v.  Railway  Co.,  26  Minn.  427,  4  X.  W.  819 324 

v.  Van  Buren,  48  N.  Y.  661    154 

Giblin  v.  Steamship  Co.,  8  Misc.  Rep.  22,  28  X.  Y.  Supp.  69 266 

Gibney  v.  State,  137  X.  Y.  1,  33  X.  E.  142 18- 

Gibson  v.  Culver,  17  Wend.  (X.  Y.)  305 282,  283,  286 

v.  Express  Co.,   1  Hun,   387    283 

v.  Leonard,  143  111.  182,  32  X.  E.  182 50 

v.  Railroad  Co.,  30  Fed.  904 185 

46  Mo.  163 117 

63  X.  Y.  449 109,  116- 

v.  Sullivan,  164  Mass.  557,  42  X.  E.  110 93, 

Gier  v.  Railway  Co.,  108  Gal.  129,  41  Pac.  22,  24 99 

Giffen  v.  City  of  Lewiston  (Idaho)  55  Pac.  545 434 

Gilbart  v.  Dale,  5  Adol.  &  E.  543 218- 


•503  CASES  CITED. 

Page 

•Gilbert  v.  Gallup,  76  111.  App.  526 384, 

v.  Railway  Co.,  160  Mass.  403,  36  N.  E.  60 181 

v.  Trinity  House,  17  Q.  B.  Div.  795 455 

v.  Williams,  8  Mass.  51 373 

•Gill  v.  Hoinrighausen,  79  Wis.  634,  48  N.  W.  862 122 

v.  Middleton,  105  Mass.  477 313,  315,  317 

v.  Railroad  Co.,  42  Law  J.  Q.  B.  89 220,  221 

Gillam  v.  Railroad  Co.,  26  Minn.  268,  3  X.  W.  353 345 

Gillespie  v.  City  of  Lincoln,  35  Neb.  34,  52  X.  W.  811 443 

v.  McGowan,  100  Pa.  St.  144   31,  67,  309 

v.  Platt,  19  Misc.  Rep.  43,  42  X.  Y.  Supp.  876 248 

v.  Railway  Co.,  6  Mo.  App.  554 221 

Gillett  v.  Ellis,   11  111.  579 226 

Gilliam  v.  Railroad  Co.,  70  Ala.  268 172 

Gilligan  v.  Railroad  Co.,  1  E.  D.  Smith  (N.  Y.)  453 63 

Gillis  v.  Railroad  Co.,  59  Pa.  St.  129 305 

Gillrie  v.  City  of  Lockport,  122  X.  Y.  403,  25  X.  E.  357 434 

Gillshannon  v.  Railroad  Corp.,  10  Cush.  (Mass.)  228 190 

Gilman  v.  Railroad  Co.,  13  Allen  (Mass.)  433 99 

v.  Railroad  Corp.,  10  Allen  (Mass.)  233 97 

v.  Town  of  Laconia,  55  N.  H.  130 425,  454 

Gilmore  v.  Carman,  1  Smedes  &  M.  (Miss.)  279 . .  „ .  227 

v.  Driscoll,  122  Mass.  199 301 

v.  Moore,  30  Ga.  628 385 

Girard  v.  City  of  Philadelphia,  7  Wall.  1 424 

Giraudi  v.  Improvement  Co.,  107  Cal.  120,  40  Pac.  108 42 

Glase  v.  City  of  Philadelphia,  169  Pa.  St.  488,  32  Atl.  600 303,  304 

•Glass  v.  Colman,  14  Wash.  635,  45  Pac.  310 313 

Glassey  v.  Railroad  Co.,  57  Pa.  St.  172 62 

Gleason  v.  Amsdell,  9  Daly  (X.  Y.)  393 156 

v.  Boehm,  58  X.  J.  Law,  475,  34  Atl.  886 311,  316 

v.  Kellogg,  52  Vt.  14 374 

v.  Smith  (Mass.)  51  X.  E.  460 105 

v.  Transportation  Co.,  32  Wis.  85 196,  232,  256,  270,  275 

Gleeson  v.  Railway  Co.,  140  U.  S.  435,  11  Sup.  Ct.  859 23,  165 

Glenn  v.  Express  Co.,  86  Tenn.  594,  8  S.  W.  152 251 

Glover  v.  Mersman,  4  Mo.  App.  90 302 

v.  Railroad  Co.,  L.  R.  3  Q.  B.  25 11 

Glushing  v.  Sharp,  96  X.  Y.  676 325,  334 

Goddard  v.  Inhabitants,  84  Me.  499,  24  Atl.  958. 441 

v.  Railway  Co.,  57  Me.  202 170 

Godeau  v.  Blood,  52  Vt.  251 364 

Godefroy  v.  Dalton,  6  Bing.  460,  467 372 

v.  Jay,  7  Bing.  413 371 

Godley  v.  Hagerty,  20  Pa.  St.  387 314 

Goggin  v.  Railway  Co.,  12  Kan.  416 251 

Goines  v.  McCandless,  4  Phila.  (Pa.)  255 195 

Golden  v.  Xewbrand,  52  Iowa,  59,  2  X.  W.  537 172 

v.  Railroad  Co.,  187  Pa.  St.  635,  41  Atl.  302,  43  Wkly.  Xotes  Cas.  106.  .  327 


CASES   CITED.  5091 

Page 

Goldey  v.  Railroad  Co.,  30  Pa.  St.  242 219,  266- 

Goldis  v.  Gately,  168  Mass.  300,  47  X.  E.  90 382 

Goldschmid  v.  City  of  New  York,  14  App.  Uiv.  135,  43  X.  Y.  Supp.  447. ...  432 

Goldstein  v.  Railway  Co.,  46  Wis.  404,  IX.  W.  37 211 

Good  v.  Railway  Co.  (Tex.  Sup.)  11  S.  W.  854 252: 

Goode  v.  Martin,  57  Md.  606 364 

Goodes  v.  Railroad  Co.,  162  Mass.  287,  38  X.  E.  500 112,  115 

Goodfellow  v.  Railroad  Co.,  106  Mass.  461 129 

Goodman  v.  Xavigation  Co.,  22  Or.  14,  28  Pac.  894,  898 231,  296 

v.  Railway  Co.,  71  Mo.  App.  460 248 

Goodrich  v.  City  of  Chicago,  20  111.  445 449 

v.  Starr,  18  Vt.  227 382 

v.  Thompson,  44  X.  Y.  324 224 

Goodwin  v.  Xickerson,  17  R.  I.  478,  23  Atl.  12 400 

v.  Railroad  Co.,  58  Barb.  (X.  Y.)  195 285 

50  X.  Y.  154,  10  Am.  Rep.  457 284 

Goold  v.  Chapin,  20  N.  Y.  259 288,  291 

Gordon  v.  City  of  Taunton,  126  Mass.  349 446 

v.  Railroad  Co.,  40  Barb.  546 177,  178 

52  X.  H.  596 198- 

Gordy  v.  Railroad  Co.,  75  Md.  297,  23  Atl.  607 102 

Gore  v.  Brazier,  3  Mass.  523 374 

v.  Transportation  Co.,  2  Daly  (X.  Y.)  254 275-277 

Gorham  v.  Railroad  Co.,  23  Hun  (X.  Y.)  449 409 

Gorham  Mfg.  Co.  v.  Fargo,  45  How.  Prac.  (X.  Y.)  90 230 

Gorman  v.  Railroad  Co.,  26  Mo.  441 ! 345 

Gormully  &  Jeffery  Mfg.  Co.  v.  Olsen,  72  111.  App.  32 91 

Gorr  v.  Mittlestaedt,  96  Wis.  296,  71  X.  W.  656 31 

Gossler  v.  Schepeler,  5  Daly  (X.  Y.)  476 298- 

Gothard  v.  Railroad  Co.,  67  Ala.  114 51,  52 

Gottlieb  v.  Railroad  Co.,  29  Hun  (X.  Y.)  637,  100  X.  Y.  462,  3  X.  E.  344 96 

Gould  v.  City  of  Topeka,  32  Kan.  485,  4  Pac.  822 430 

v.  Hill,  2  Hill  (X.  Y.)  623 238 

v.  McKenna,  86  Pa.  St.  297 53 

v.  Schermer,  101  Iowa,  582,  70  X.  W.  697 18,  20' 

v.  Woolen  Co.,  147  Mass.  315,  17  X.  E.  531 370 

Government  St.  R.  Co.  v.  Hanlon,  53  Ala.  70 67,  70 

Governor  v.  Carter,  10  X.  C.  328 '.  384 

v.  Dodd,  81  111.  163 388 

v.  Powell.  9  Ala.  83 384 

v.  Wiley,  14  Ala.  172 388 

Gowen  v.  Bush.  22  C.  C.  A.  196,  76  Fed.  349 145 

Grace  v.  Adams,  100  Mass.  505 239,  256,  258 

Graffam  v.  Railroad  Co.,  67  Me.  234 274 

Graf  ton,  The,  1  Blatchf.  173,  Fed.  Cas.  Xo.  5,655 286 

Graham  v.  Davis,  4  Ohio  St.  362 220 

v.  Town  of  Oxford,  105  Iowa,  705,  75  N.  W.  473 32,  432,  434 

Gram  v.  Railroad  Co.,  1  X.  D.  252,  46  X.  W.  972 16 

Gramm  v.  Boener,  56  Ind.  497 376 


510  CASES  CITED. 

Page 

Granby  v.  Railroad  Co.,  104  Mich.  403,  62  N.  W.  579 342 

Grand  Rapids  &  I.  R.  Co.  v.  Huntley,  38  Mich.  537 204 

Grand  Tower  Mfg.  &  Transp.  Co.  v.  Ullman,  89  111.  244 279 

Grand  Trunk  Ry.  Co.  v.  Cummings,  106  U.  S.  700,  1  Sup.  Ct.  493 151 

v.  Ives,  144  U.  S.  408,  12  Sup.  Ct.  679 38 

v.  Richardson,  91  U.  S.  454 359 

v.  Stevens,  95  U.  S.  655 212 

Grand  Trunk  Ry.  Co.  of  Canada  v.  Jennings,  13  App.  Cas.  800,  58  Law 

J.  P.  C.  1,  59  Law  T.  (X.  S.)  679 413 

Grannis  v.  Branden,  5  Day  (Conn.)  260 378 

v.  Cummings,  25  Conn.  165 349 

Grant  v.  Baker,  12  Or.  329,  7  Pac.  318 84 

v.  City  of  Erie,  69  Pa,  St.  420 451 

v.  City  of  Still  water,  35  Minn.  242,  28  X.  W.  660 447 

v.  Moseley,  29  Ala.  302 2 

v.  Varney,  21  Colo.  329,  40  Pac.  771 146 

Graves  v.  Railroad  Co.,  29  App.  Div.  591,  51  X.  Y.  Supp.  636 289 

137  Mass.  33    247,  248 

v.  Thomas,  95  Ind.  361 309 

Gray  v.  City  of  Detroit,  112  Mich.  657,  71  N.  W.  1107. 444 

v.  Combs,  7  J.  J.  Marsh.  (Ky.)  478 308 

v.  Harris,  107  Mass.  492. . 319 

v.  Jackson,  51  N.  H.  9 291 

v.  Railroad  Co.,  11  Fed.  683 195 

24  Fed.  168  59,  129 

168  Mass.  20,  46  N.  E.  397 158,  170 

172  Pa.  St.  383,  33  Atl.  697 335 

v.  Scott,  66  Pa.  St.  345 42,  68 

Greany  v.  Railroad  Co.,  101  N.  Y.  419,  5  X.  E.  425 87,  333,  335 

Great  Northern  Ry.  Co.  v.  Harrison,  10  Exch.  376 196 

v.  Shepherd,  8  Exch.  30,  14  Eng.  Law  &  Eq.  367 231,  273 

Great  Western  Ry.  Co.  v.  Blake,  7  Hurl.  &  X.  987 182,  206 

v.  Crouch,  3  Hurl.  &  X.  183 297 

v.  Haworth,  39  111.  346,  353 3 

v.  Miller,  19  Mich.  305 183,  185 

Green  v.  Railroad  Co.,  31  Barb.  (X.  Y.)  260,  16  How.  Prac.  (X.  Y.)  263 401 

11  Hun  (N.  Y.)  333 338 

38  Iowa,  100,  41  Iowa,  410 280,  281 

41  X.  Y.  294 391 

v.  Sansom  (Fla.)  25  South.  332 95 

v.  Southern  Pac.  Co.  (Cal.)  55  Pac.  577 405 

v.  Thompson,  26  Minn.  500,  5  X.  W.  376 402 

Greene  v.  Railway  Co.,  31  Minn.  248,  17  X.  W.  378 120,  121 

Greene  Co.  v.  Eubanks,  80  Ala.  204 455,  456 

Greenland  v.  Chaplin,  5  Exch.  243 11,  27,  54 

Greenleaf  v.  Railroad  Co.,  29  Iowa,  14 91 

Green  Ridge  R.  Co.  v.  Brinkman,  64  Md.  52,  20  Atl.  1024 16,  357 

Greenwich  Ins.  Co.  v.  Packet  Co.,  4  O.  L.  D.  405 273 

Gregory,  The,  9  Wall.  513 59 


CASES  CITED.  511 

Page 

Gregory  v.  Railway  Co.,  100  Iowa,  345,  68  N.  W.  532 197 

Grey's  Ex'r  v.  Trade  Co.,  55  Ala.  387 86 

Gridley  v.  City  of  Bloomington,  68  111.  47 311,  312 

Grieve  v.  Railway  Co.,  104  Iowa,  659,  74  N.  W.  192 219,  250 

Griffin  v.  Mayor,  etc.,  9  N.  Y.  456 451 

v.  Railway  Co.,  124  Ind.  326,  24  N.  E.  888 105 

Griffith  v.  Cave,  22  Cal.  535 216 

v.  Railway  Co.,  98  Mo.  168,  11  S.  W.  559 180 

Griffiths  v.  Lee,  1  Car.  &  P.  110 218 

v.  Wolfram,  22  Minn.  185 130 

Griggs  v.  Fleckenstein,  14  Minn.  81  (Gil.  62) 25,  26,  36,  45,  52 

v.  Foote,  4  Allen  (Mass.)  195 444 

Grimes  v.  Eddy,  126  Mo.  168,  28  S.  W.  756 366 

v.  Pennsylvania  Co.,  36  Fed.  72 176,  177 

Grindle  v.  Express  Co.,  67  Me.  317 237 

Grindley  v.  McKechnie,  163  Mass.  494,  40  N.  E.  764 306 

Grippen  v.  Railroad  Co.,  40  N.  Y.  34 *. 36,  326 

Griswold  v.  Railroad  Co.,  64  Wis.  652,  26  N.  W.  101 211 

Grive  v.  Dunham,  60  Iowa,  108,  14  N.  W.  130 298 

Grogan  v.  Express  Co.,  114  Pa.  St  523,  7  Atl.  134 249 

v.  Foundry  Co.,  87  Mo.  321 409 

v.  Railway  Co.,  39  W.  Va,  415,  19  S.  E.  593 183 

Gronstadt  v.  Witthoff,  15  Fed.  265 253 

Grosenbach  v.  City  of  Milwaukee,  65  Wis.  31,  26  N.  W.  182 434 

Gross  v.  City  of  Portsmouth  (N.  H.)  33  Atl.  256 443 

v.  Railway  Co.,  73  111.  App.  217 4 

Grosvenor  v.  Railroad  Co.,  39  N.  Y.  34 279,  281 

Groth  v.  Washburn,  89  N.  Y.  615 154 

Grove  v.  City  of  Ft.  Wayne,  45  Ind.  429 432,  436 

Grover  &  Baker  Sewing  Mach.  Co.  v.  Railway  Co.,  70  Mo.  672 294,  295 

Grunberg  v.  Grant,  3  Misc.  Rep.  230,  22  N.  Y.  Supp.  747 383 

Guggenheim  Smelting  Co.  v.  Flanigan  (N.  J.  Err.  &  App.)  41  Atl.  844 92 

Guinney  v.  Hand,  153  Pa.  St.  404,  26  Atl.  20 173,  174 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Calvert,  11  Tex.  Civ.  App.  297,  32  S.  W.  246..150,  328 

v.  Campbell,  76  Tex.  174,  13  S.  W.  19 196 

v.  Cash,  8  Tex.  Civ.  App.  569,  28  S.  W.  387 347 

v.  Compton,  75  Tex.  667,  13  S.  W.  667 410,  413 

(Tex.  Civ.  App.)  38  S.  W.  220 227,  280 

v.  Cunningham  (Tex.  Civ.  App.)  30  S.  W.  367 306,  307 

v.  Finley,  11  Tex.  Civ.  App.  64,  32  S.  W.  51 103 

v.  Gatewood,  79  Tex.  89,  14  S.  W.  913 225,  229,  235 

v.  Hamilton  (Tex.  Civ.  App.)  42  S.  W.  358 332 

v.  Higby  (Tex.  Civ.  App.)  26  S.  W.  737 202 

v.  Holder,  10  Tex.  Civ.  App.  223,  30  S.  W.  383 231 

v.  Hughes  (Tex.  Civ.  App.)  31  S.  W.  411 234 

v.  Hume,  87  Tex.  211,  27  S.  W.  110 235 

v.  Jackson,  12  C.  C.  A.  507,  65  Fed.  48 93,  94 

v.  Jagoe  (Tex.  Civ.  App.)  32  S.  W.  717 359 

v.  Johnson  (Tex.  Sup.)  50  S.  W.  563 357 


512  CASES  CITED. 

Page- 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Kirkbridge,  79  Tex.  457,  15  S.  W.  495 185- 

v.  Kuenble  (Tex.  App.)  16  S.  W.  177 185 

v.  Levi,  76  Tex.  337,  13  S.  W.  191 218,  229,  234,  235 

v.  McGown,  65  Tex.  640 212,  239> 

v.  McWliirter,  77  Tex.  356,  14  S.  W.  26 69- 

v.  Malone  (Tex.  Civ.  App.)  25  S.  W.  1077 296- 

v.  Morris,  67  Tex.  692,  4  S.  W.  156 209 

v.  Pendry,  87  Tex.  553,  29  S.  W.  1038 57,  59,  60* 

v.  Sain  (Tex.  Civ.  App.)  24  S.  W.  958 180> 

v.  Scott  (Tex.  Civ.  App.)  27  S.  W.  827 330- 

v.  Spence  (Tex.  Civ.  App.)  32  S,  W.  329 324 

v.  Stricklin  (Tex.  Civ.  App.)  27  S.  W.  1093 202 

v.  Styron,  66  Tex.  421,  1  S.  W.  161 69- 

v.  Trawick,  68  Tex.  314,  4  S.  W.  567 239,  250,  262 

80  Tex.  270,  15  S.  W.  568,  18  S.  W.  948 279- 

v.  Warner,  89  Tex.  475,  35  S.  W.  364 150> 

(Tex.  Civ.  App.)  36  S.  W*  118 92 

v.  Wells  (Tex.  Sup.)  16  S.  W.  1025 149> 

v.  Wright,  10  Tex.  Civ.  App.  179,  30  S.  W.  294 200 

v.  Yates  (Tex.  Civ.  App.)  32  S.  W.  355 25O 

v.  Younger  (Tex.  Giv.  App.)  40  S.  W.  423 416 

Gulf,  W.  T.  &  P.  Ry.  Co.  v.  Abbott  (Tex.  Civ.  App.)  24  S.  W.  299 89 

Gulf,  W.  &  P.  Ry.  Co.  v.  Griffith  (Tex.  Civ.  App.)  24  S.  W.  362 292 

Gullikson  v.  McDonald,  62  Minn.  278,  64  N.  W.  812 440,  443 

Gulliver  v.  Express  Co.,  38  111.  503 215,  282 

Gumb  v.  Railway  Co.,  53  N.  Y.  Super.  Ct.  466 323 

Gum^  v.  Railway  Co.,  52  Wis.  672,  10  N.  W.  11 40- 

Gunderson  v.  Elevator  Co.,  47  Minn.  161,  49  N.  W.  694 410 

Gunn  v.  Railroad  Co.,  37  W.  Va.  421,  16  S.  E.  628 63 

42  W.  Va.  676,  26  S.  E.  546 51,  64,  65 

Gusman  v.  Railroad  Co.,  49  La.  Ann.  1264,  22  South.  742 118 

Guthrie  v.  Railway  Co.,  51  Neb.  746,  71  N.  W.  722 37 

Gutkind  v.  City  of  Elroy,  97  Wis.  649,  73  N.  W.  325 434 

Guy  v.  Railway  Co.,  6  Ohio  N.  P.  3 184,  185 

Gwinnell  v.  Earner,  L.  R.  10  C.  P.  658 313,  314= 

Gwyn  v.  Railroad  Co.,  85  N.  C.  429 298 

Gwynn  v.  Duffield,  66  Iowa,  708,  24  N.  W.  523 370- 


H 

Haag  v.  Board,  60  Ind.  511 441,  445 

Haas  v.  Railroad  Co.,  81  Ga.  792,  7  S.  E.  629 229,  235 

40  Hun  (N.  Y.)  145 1091 

41  Wis.  44 336 

Haase  v.  Navigation  Co.,  19  Or.  354,  24  Pac.  238 195 

Hackett  v.  Smelsley,  77  111.  109 40O 

Hadji,  The,  18  Fed.  459 248 

20  Fed.  875  .  .  286. 


CASES  CITED.  513 

Page 

Hadley  v.  Clarke,  8  Term  R.  259 236 

v.  Railroad  Co.  (Ind.  App.)  -40  X.  E.  935. : 87 

v.  Taylor,  L.  R.  1  C.  P.  53 309 

Haff  v.  Railway  Co..  14  Fed.  558 59 

Hafford  v.  City  of  New  Bedford,  16  Gray  (Mass.)  297 443,  450,  452 

Hagen  v.  Kean,  3  Dill.  124,  Fed.  Cas.  No.  5,899 400 

Hagerty  v.  Hughes,  4  Baxt  (Tenn.)  222 416 

Haggerty  v.  Railroad  Co.,  31  N.  J.  Law,  349 404 

Haines  v.  Railroad  Co.,  29  Minn.  160,  12  N.  W.  447 273 

Haizlip  v.  Rosenberg,  63  Ark.  430,  39  S.  W.  60 316 

Hale  v.  Kearly,  8  Baxt.  (Tenn.)  50 418 

Haley  v.  Lumber  Co.,  81  Wis.  412,  51  N.  W.  321,  956 161 

v.  Railroad  Co.,  7  Baxt.  239 398 

21  Iowa,  15 52 

Hall  v.  City  of  Austin  (Minn.)  75  N.  W.  1121 432 

v.  Railroad  Co.,  15  Fed.  57 186,  198 

39  Fed.  18 411 

13  Utah,  243,  44  Pac.  1046 52 

v.  Renfro,  3  Mete.  (Ivy.)  52 216 

Halliburton  v.  Railroad  Co.,  58  Mo.  App.  27 108 

Halliday  v.  Railway  Co.,  74  Mo.  159 293 

Hallyburton  v.  Ass'n,  119  X.  C.  526,  26  S.  E.  114 42 

Ham  v.  Canal  Co.,  142  Pa.  St.  617,  21  Atl.  1012 184 

v.  Mayor,  etc.,  70  X.  Y.  459 441 

Hamilton  v.  Jones,  125  Ind.  176,  25  X.  E.  192 402 

v.  McPherson,  28  X.  Y.  72 53 

v.  Railroad  Co.,  51  X.  Y.  100 200 

54  Tex.  556  119 

64  Tex.  251 211 

Hamlin  v.  Railway  Co.,  1  Hurl.  &  N.  408 210 

Hammond  v.  Railroad  Co.,  6  S.  C.  130 188,  189 

v.  Town  of  Mukwa,  40  Wis.  35 25 

Hance  v.  Railway  Co.,  56  Mo.  App.  476 253 

Hancock  v.  Railroad  Co.  (Ind.  App.)  51  X.  E.  369 5,  8 

Hand  v.  Baynes,  4  Whart.  (Pa.)  204 224 

Hamlley  v.  Mining  Co.,  15  Utah,  176,  49  Pac.  295 151 

Hankins  v.  Watkins,  77  Hun,  360,  28  X.  Y.  Supp.  867 368 

Haiilon  v.  Ingram,  3  Iowa,  81 350 

v.  Railroad  Co.,  129  Mass.  310 46,  328 

Hanna  v.  Railroad  Co.,  32  Ind.  113 420,  421 

Hannibal  R.  Co.  v.  Swift,  12  Wall.  262 191,  194,  216,  217,  270 

Hannibal  &  St.  J.  R.  Co.  v.  Fox,  31  Kan.  586,  3  Pac.  320 147 

v.  Martin,  111  111.  219 178,  206 

Hannigan  v.  Railway  Co.,  157  X.  Y.  244,  51  X.  E.  992 110 

Hannon  v.  St.  Louis  Co.,  62  Mo.  313 425,  449 

Hanrathy  v.  Railway  Co.,  46  Md.  280 148 

Hansen  v.  Railway  Co.,  105  Cal.  379,  38  Pac.  957 327 

73  Wis.  346,  41  X.  W.  529 203 

Hansford's  Adm'x  v.  Payne,  11  Bush  (Ky.)  380 398 

BAR.XEG.— 33 


514  CASES  CITED. 

Page 

Hanson  v.  Beckwith  (R.  I.)  37  Atl.  702 317 

v.  Hammell  (Iowa)  77  N.  W.  839 107 

v.  Railway  Co.,  75  111.  App.  474 172 

Hard  v.  Railroad  Co.,  32  Vt.  473 150 

Hardcastle  v.  Railroad  Co.,  4  Hurl.  &  N.  67 309 

Hardenbergh  v.  Railway  Co.,  39  Minn.  3,  38  N.  W.  625 193 

Harding  v.  Railroad  Co.,  100  Iowa,  677,  69  N.  W.  1019 348 

Hardman  v.  Willcock,  9  Bing.  382 297 

Hardy,  In  re,  35  Minn.  193,  28  N.  W.  219 402 

v.  City  of  Brooklyn,  7  Abb.  (N.  C.)  403 429 

v.  Railroad  Co.,  57  N.  J.  Law,  505,  31  Atl.  281 128,  148 

76  N.  C.  5 98 

Hargreaves  v.  Deacon,  25  Mich.  1 306,  310 

Harkin  v.  Crumbie,  14  Misc.  Rep.  -139,  35  N.  Y.  Supp.  1027 316 

20  Misc.  Rep.  568,  46  N.  Y.  Supp.  453 317 

Harmon  v.  Railroad  Co.,  •  7  Mackey,  255 40 

Harmony  v.  Bingham,  1  Duer  (N.  Y.)  209,  12  N.  Y.  99 237 

Harold,  The,  21  Fed.  428 128,  166 

Harp  v.  The  Grand  Era,  1  Woods,  184,  Fed.  Cas.  No.  6,084 293 

Harpel  v.  Fall,  63  Minn.  520,  65  N.  W.  913 315 

Harper  v.  Railroad  Co.,  22  App.  Div.  273,  47  N.  Y.  Supp.  933 59 

36  Fed.  102 403 

Harriman  v.  Baird,  6  App.  Div.  518,  39  N.  Y.  Supp.  592 375 

Harrington  v.  McKillop,  132  Mass.  567 400 

v.  McShane,  2  Watts  (Pa.)  443 216,  284 

r.  Mining  Co.  (Utah)  53  Pac.  737 85 

Harriott  v.  Plimpton,  166  Mass.  585,  44  N.  E.  992 376,  377 

Harris  v.  James,  45  Law  J.  Q.  B.  545 314 

v.  McNamara,  97  Ala.  181,  12  South.  103 161 

v.  Packwood,  3  Taunt.  264 238 

v.  Railway  Co.,  78  Ga.  525,  3  S.  E.  355 417 

20  N.  Y.  232 233,  262 

15  R.  I.  371,  5  Atl.  305 294 

(R.  I.)  16  Atl.  512 293 

v.  Stevens,  31  Vt.  79   176 

v.  Tenney,  85  Tex.  254,  20  S.  W.  82 382 

v.  Uebelhoer,  75  N.  Y.  169 59 

Harrisburg,  The,  119  U.  S.  199,  7  Sup.  Ct.  140 420 

Harrison  v.  Brega,  20  U.  C.  Q.  B.  324 388 

v.  Fink,  42  Fed.  787 184 

v.  Railroad  Co.,  3  Hurl.  &  C.  231 54 

29  Law  T.  (N.  S.)  844 327 

74  Mo.  364 237 

31  N.  J.  Law,  293 148 

6  S.  D.  100,  60  N.  W.  405 344 

Harsha  v.  Babicx,  54  111.  App.  586  91 

Hart  v.  Bridge  Co.,  80  N.  Y.  622 87 

v.  Bridgeport,  13  Blatchf.  289,  Fed.  Cas.  No.  6,149 452 

v.  Devereux,  41  Ohio  St.  505 44 


CASES  CITED.  515 

Page 

Hart  v.  Frame,  6  Clark  &  F.  193 374 

v.  Park  Club,  54  111.  App.  480 50 

v.  Railroad  Co.,  13  Mete.  (Mass.)  99 352 

112  U.  S.  331,  5  Sup.  Ct.  151 247,  250 

v.  Windsor,  12  Mees.  &  W.  68  315 

Hartan  v.  Railroad  Co.,  114  Mass.  44 181,  182 

Hartfield  v.  Roper,  34  Am.  Dec.  273,  21  Wend.  (X.  Y.)  615.  .64,  70-72,  394,  395 

Hartford  &  N.  H.  R.  Co.  v.  Andrews,  36  Conn.  213 • 401 

Hartleib  v.  McLane's  Adm'rs,  44  Pa.  St.  510 385 

Hartley  v.  Harriman,  1  Holt,  X.  P.  617 364 

Hartman  v.  Muelbach,  2  Mo.  App.  Rep'r,  956 158 

Hartnall  v.  Com'rs,  4  Best  &  S.  361,  33  Law  J.  Q.  B.  39 455 

Hartwell  v.  Express  Co.,  5  Dak.  463,  41  X.  W.  732 258 

Hartzall  v.   Sill,    12   Pa.   St.  248 318 

Harvey  v.  City  of  Hillsdale,  86  Mich.  330,  49  X.  W.  141 447 

v.  Railroad  Co.,  35  App.  Div.  307,  55  N.  Y.  Supp.  20 323 

74   Mo.   538 247,  250 

88  X.  Y.  481 98 

23  X.  Y.  Wkly.  Dig.  198 57 

v.  Rose,  26  Ark.  3 216 

Haskell  v.  New  Bedford,  108  Mass.  208 428 

Haslam  v.  Express  Co.,  6  Bosw.  (N.  Y.)  235 283 

Hass  v.  Steamship  Co.,  88  Pa.  St.  269 129 

Hasse  v.  Express  Co.,  94  Mich.  133,  53  X.  W.  918 283 

Hassen  v.  Railroad  Co.,  34  App.  Div.  71,  53  X.  Y.  Supp.  1069 205 

Hassenyer  v.  Railroad  Co.,  48  Mich.  205,  12  X.  W.  155 75 

Hastings  v.  Halleck,  13  Cal.  204 373,  375 

v.  Pepper,  11  Pick.  (Mass.)  41  216 

Hasty  v.  Sears,  157  Mass.  123,  31  X.  E.  759 128 

Hatch  v.  Dwight,   17  Mass.   289 318 

Hathaway  v.  Railroad  Co.,  29  Fed.  489 42 

92  Iowa,  337,  60  N.  W.  651 95,  98,  147 

51  Mich.  253,  16  X.  W.  634 110 

Hatt  v.  Xay,  144  Mass.  186,  10  X.  E.  807 1 120 

Hatton  v.  Holmes,  97  Cal.  208,  31  Pac.  1131 386 

Haug  v.  Railway  Co.,  42  Lawy.  Rep.  Ann.  664 417 

(X.  D.)  77  X.  W.  97 206 

Haughey  v.  Hart,  62  Iowa,  96,  17  X.  W.  189 309 

Havens  v.  Railroad  Co.,  28  Conn.  69 201 

Haver  v.  Railroad  Co.  (X.  J.  Err.  &  App.)  41  Atl.  916 170 

Haverly  v.  Railroad  Co.,  135  Pa.  St.  50,  19  Atl.  1013,  26  Wkly.  Xotes  Cas.  321     15 

Ha  verstick  v.  Railroad  Co.,  171  Pa.  St.  101,  32  Atl.  1128 340 

Hawcroft  v.  Railway  Co.,  8  Eng.  Law  &  Eq.  362 193,  210 

Hawke  v.  Brown,  28  App.  Div.  37,  50  X.  Y.  Supp.  1032 166 

Hawkes  v.  Smith,   Car.  &  M.  72 218 

Hawkins  v.  The  Hattie  Palmer,  63  Fed.  1015 283 

V.Hoffman,    6   Hill    (X.    Y.)    586 268,271 

v.  Johnson,  105  Ind.  29,  4  X.  E.  172 110 

y.  Railroad  Co.,  17  Mich.  57,    18  Mich.  427 222,  245,  253 


516  CASES  CITED. 

Page 

Hawkins  v.  Taylor,  56  Ark.  45,  19  S.  W.  105 382 

Hawley  v.  City  of  Johnstown,  40  App.  Div.  568,  58  N.  Y.  Supp.  49 437 

Hawyer  v.  Whalen,  49  Ohio  St.  69,  29  N.  E.  1049 161 

Hay  v.  Cohoes  Co.,  2  N.  Y.  159 174 

v.  Railroad  Co.,  37  U.  C.  Q.  B.  456 44 

Haycroft  v.  Railroad  Co.,  64  N.  Y.  636 333 

Hayden  v.  Mfg.  Co.,  29  Conn.  548 107 

Hayes  v.  City  of  Oshkosh,  33  Wis.  314 452,  453 

v.  Colchester  Mills,  69  Vt.  1,  37  Atl.  269 107,  119 

v.  Norcross,  162  Mass.  546,  39  N.  E.  282 67,  69' 

r.  Railroad  Co.,  Ill  U.  S.  228,  4  Sup.  Ct.  369 .' 74 

v.  Smith,  8  Ohio  Dec.  92 362,  363: 

v.  Wells,  Fargo  &  Co.,  23  Cal.  185 215,  231 

Haynes  v.  Railroad  Co.,  3  Cold.   (Tenn.)  222 102 

Haynie  v.  Railroad  Co.,  9  111.  App.  105 41T 

Hays  v.  Ewing,  70  Cal.  127,  11  Pac.  602 375 

v.  Kennedy,  41  Pa.  St.  378 219 

v.  Miller,  77  Pa.  St.  238,  242 168 

v.  Railway  Co..  70  Tex.  602,  606,  8  S.  W.  491 6 

Hays'  Adm'r  v.  Miller,  6  Hun  (N.  Y.)  320 350 

Healey  v.  Lothrop,  171  Mass.  263,  50  N.  E.  540 155 

Healy  v.  Mayor,  etc.,  3  Hun  (N.  Y.)  708 77 

Hearne  v.  Railroad  Co.,  50  Cal.  482 37 

Heath  v.  Railway  Co.,  90  Hun,  560,  36  N.  Y.  Supp.  22 40 

Heaven  v.  Fender,  11  Q.  B.  Div.  506  1 

Heckman  v.  Evenson,  7  N.  D.  173,  73  N.  W.  427 87 

Hector  Min.  Co.  v.  Robertson,  22  Colo.  491,  45  Pac.  406 49,  309 

Hedges  v.  City  of  Kansas,  18  Mo.  App.  62 61 

v.  Railroad  Co.,  49  N.  Y.  223 285,  287 

Hedin  v.  Railway  Co.,  26  Or.  155,  37  Pac.  540 63 

Heeg  v.  Licht,  80  N.  Y.  579 369 

Heerington  v.  Village  of  Lansingburgh,  110  N.  Y.  145,  17  N.  E.  728 447 

Hefferen  v.  Railroad  Co.,  45  Minn.  471,  48  N.  W.  1 151 

Hefferman  v.  Alfred  Barber's  Son,  36  App.  Div.  163,  55  N.  Y.  Supp.  418. .     40' 

Hegeman  v.  Railroad  Corp.,  13  N.  Y.  9 29,  203,  204 

Hegerich  v.  Keddie,  99  N.  Y.  258,  1  N.  E.  787 402,  403 

Heidt  v.  Minor,  113  Cal.  385,  45  Pac.  700 386 

Heimann  v.  Railroad  Co.,  2  Daly  (N.  Y.)  117 251 

Heine  v.  Railway  Co.,  58  Wis.  531,  17  N.  W.  420 150- 

Heim  v.  McCaughan,  32  Miss.  17 210 

Helfrich  v.  Railway  Co.,  7  Utah,  186,  26  Pac.  295 394 

Helliwell  v.  Railway  Co.,  7  Fed.  68 '...  .223,  292 

Hellman  v.  Holladay,  1  Woolw.  365,  Fed.  Cas.  Xo.  6,340 270,  273 

Helmke  v.  Stetler,  69  Hun,  107,  23  N.  Y.  Supp.  392 106 

Hemphill  v.  Chenie,  6  Watts  &  S.   (Pa.)  62 282 

Hemsworth  v.  Gushing,  115  Mich.  92,  72  N.  W.  1108 301 

Henderson  v.  Railroad  Co.,  20  Fed.  430;    123  U.  S.  61,  8  Sup.  Ct.  60 275 

v.  Smith,  26  W.  Va.  829 38f? 

v.  Stevenson,  L.  R.  2  H.  L.  Sc.  470 .  198- 


CASES  CITED.  517 

Page 

Hendrick  r.  Railroad  Co.,  170  Mass.  44,  48  X.  E.  835 20<j 

llendricken  v.  Meadows,  154  Mass.  599,  28  X.  E.  1O54 42 

Hendryx  v.  Railroad  Co.,  45  Kan.  377,  25  Pac.  893 195 

Henion  v.  Railroad  Co.,  25  C.  C.  A.  223,  79  Fed.  903 116 

Henkes  v.  City  of  Minneapolis,  42  Minn.  530,  44  X.  W.  1026 433 

Henline  v.  Reese,  54  Ohio  St.  599,  44  N.  E.  269,  56  Am.  St  Rep.  36 382 

Hennessy  v.  Brewing  Co.,  145  Mo.  104,  46  S.  W.  966 401 

v.  City  of  Boston,  161  Mass.  502,  37  X.  E.  668 94 

v.  Railroad  Co.,  99  Wis.  109,  74  X.  W.  554 32 

Henry  v.  Dennis,  93  Ind.  452 45 

v.  Railroad  Co.,  50  Cal.  176 352 

67  Fed.  426 44 

139  Pa.  St.  289,  21  Atl.  157 169 

Hepburn  v.  City  of  Philadelphia,  149  Pa.  St.  335.  24  Atl.  279 164 

Herbert  v.  Southern  Pac.  Co.,  121  Cal.  227,  53  Pac.  651 87 

Herdler  v.  Range  Co.,  136  Mo.  3,  37  S.  W.  115 90 

Hermann  v.  Goodrich,  21  Wis.  543  286,  291 

v.  Mill  Co.,  71  Fed.  853 145 

Hern  v.  Xichols,  1  Salk.  289 153 

Hess  v.  Lupton,  7  Ohio,  216 310 

v.  Mining  Co.,  178  Pa.  St.  239,  35  Atl.  990 14,  156 

Hession  v.  City  of  Wilmington,  1  Marv.  122,  40  Atl.  749 429 

Hetherington  v.  Railway  Co.,  9  Q.  B.  Div.  160 411 

Hettchen  v.  Chipman,  87  Md.  729.  41  Atl.  65 107 

Hewett  v.  Railway  Co.,  63  Iowa,  611,  19  X.  W.  790 222,  225 

Hewey  v.  Xourse,  54  Me.  256 350 

Hewison  v.  City  of  Xew  Haven,  37  Conn.  475 426.  449 

Hewitt  v.  Eisenbart,  36  Xeb.  794.  55  N.  W.  252 376,  377 

v.  Railway  Co.,  167  Mass.  483,  46  X.  E.  106 63 

Hey  v.  City  of  Philadelphia,  81  Pa.  St.  44 435 

Heyer  v.  Salsbury,  7  111.  App.  93 412 

Hibbard  v.  Railroad  Co.,  15  X.  Y.  455 184,  196 

Hickey  v.  Railroad  Co.,  14  Allen  (Mass.)  429 334 

Hickman  v.  Railway  Co.,  22  Mo.  App.  344 410 

Higginbotham  v.  Railway  Co.,  10  Wkly.  Rep.  358 218 

Higgins  v.  Butcher,  Yel.  89 390 

v.  Dewey,  107  Mass.  494 349 

v.  Railroad  Co..  1  Marv.  352,  41  Atl.  86 52 

36  Mo.  418 190,  196 

v.  Telegraph  Co.,  8  Misc.  Rep.  433.  28  N.  Y.  Supp.  676 157 

Hildreth  v.  City  of  Lowell.  11  Gray  (Mass.)  345 428 

Hill  v.  Allen,  2  Mees.  &  W.  283 374 

v.  Balls,  2  Hurl.  &  N.  299 366 

v.  Board,  72  X.  C.  55 451 

v.  City  of  Boston,  122  Mass.  344 431,  433,  440,  450,  454,  455 

v.  Drug  Co.,  140  Mo.  433,  41  S.  W.  909 105 

v.  Gust.  55  Ind.  45 86 

v.  Humphreys,  5  Watts  &  S.  (Pa.)  123 283 

v.  Railroad  Co.,  60  Iowa,  196,  14  X.  W.  249 294 


518  CASES  CITED. 

Page 

Hill  v.  Railroad  Co.,  144  Mass.  284,  10  N.  E.  836 247,  248 

158  Mass.  458,  33  N.  E.  582 181,  205 

66  Mo.  App.  184  346 

67  N.  H.  449,  32  Atl.  766 345 

63  N.  Y.  101 199 

v.  Sturgeon,  28  Mo.  323 219 

v.  Town  of  New  Haven,  37  Vt.  501 420 

v.  Winsor,  118  Mass.  251 11 

Billiard  v.  Richardson,  3  Gray  (Mass.)  349 300 

Hillis  v.  Railway  Co.,  72  Iowa,  228,  33  N.  W.  643 275,  277 

Hillman  v.  Xewington,  57  Gal.  56 57 

Hill  Mfg.  Co.  v.  Boston  &  L,  R.  Corp.,  104  Mass.  122 291-293 

Hincks  v.  City  of  Milwaukee,  46  Wis.  559,  1  N.  W.  230 447 

Hiner  v.  City  of  Fond  du  Lac,  71  Wis.  74,  36  N.  W.  632 432 

Hines  v.  Willcox,  96  Tenn.  148,  33  S.  W.  914 313 

Hinton  v.  Railway  Co.  (Minn.)  75  N.  W.  373 220 

Hipp  v.  Railway  Co.,  50  S.  C.  129,  27  S.  E.  623 288 

Hirsch  v.  The  Quaker  City,  2  Disn.  (Ohio;  144 287 

Hirschsohn  v.  Packet  Co.,  34  N.  Y.  Super.  Ct  521 269 

Hirshberg  v.  Dinsmore,  12  Daly  (N.  Y.)  429 251 

Hite  v.  Blandford,  45  111.  9 366 

Hoadley  v.  Transportation  Co.,  115  Mass.  304 24,  225,  238,  253,  254 

Hoag  v.  Railroad  Co.,  85  Pa.  St.  293 10 

Hoar  v.  Merritt,  62  Mich.  386,  390,  29  N.  W.  15 136,  137 

v.  Railroad  Co.,  70  Me.  65 187,  191 

Hobbs  v.  Railway  Co.,  49  Ark.  357,  5  S.  W.  586 187 

L.  R.  10  Q.  B.  Ill 210 

Hobdy  v.  Margotto,  4  Lack.  Leg.  News,  17 158 

Hobson  v.  Railroad  Co.,  11  Pac.  545 145 

Hoby  v.  Built,  3  Barn.  &  Adol.  350 371 

Hocum  v.  Weitherick,  22  Minn.  152 84.  85 

Hodge  v.  Railroad  Co.,  27  Hun  (N.  Y.)  394 346 

Hodges  v.  Wheel  Co.  (Ind.  Sup.)  52  N.  E.  391 147 

Hodgkins  v.  Railroad  Co.,  119  Mass.  419 149 

Hoeger  v.  Railway  Co.,  63  Wis.  100,  23  N.  W.  435 289 

Hoff  v.  Railroad  Co.,  45  N.  J.  Law,  201 355 

Hcffbauer  v.  Railroad  Co.,  52  Iowa,  342,  3  N.  W.  121 184,  196 

Hoffman  v.  Railroad  Co.,  67  Hun,  581,  22  N.  Y.  Supp.  463 334 

56  Pac.  (Kan.  App.)  331 334 

85  Md.  391,  37  Atl.  214 290 

v.  Water  Co.,  10  Cal.  413 32 

Hofnagle  v.  Railroad  Co..  55  N.  Y.  608 4 

Hogan  v.  Railroad  Co.,  53  Fed.  519 123 

Hoggard  v.  Monroe  (La.)  25  South.  349 444 

Hogue  v.  Railroad  Co.,  32  Fed.  365 407 

Holden  v.  Coke  Co.,  3  C.  B.  1 35 

v.  Railroad  Co.,  129  Mass.  268,  271 137 

Holdridge  v.  Railroad  Co..  56  Barb.  (N.  Y.)  191 289 

Hole  v.  Railroad  Co.,  6  Hurl.  &  N.  488 164,  165 


CASES   CITED.  519 

Page 

Holladay  v.  Kennard,  12  Wall.  254 229,  230 

Holland  v.  Anthony,  19  R.  I.  216,  36  Atl.  2 384 

Holley  v.  Mix.  3  Wend.  (X.  Y.)  350 383 

Hollis  v.  Brown,  33  Am.  Law  Reg.  114,  115,  159  Pa.  St.  539,  28  Atl.  360 315 

Hollister  v.  Xowlen,  19  Wend.  (N.  Y.)  234,  247. .  .191,  216,  218,  231,  254-256,  267 

Hollrnan  v.  City  of  Platteville,  101  Wis.  94,  76  N.  W.  1119 441 

Holman  v.  Kempe,  70  Minn.  422,  73  X.  W.  186 141 

Holmes  v.  Peck,  1  R.  I.  242 372 

v.  Railroad  Co.,  97  Cal.  161,  31  Pac.  834 38 

5  Fed.  523 402 

L.  R.  4  Exch.  254 129,  211 

49  La.  Ann.  1465,  22  South.  403 158 

48  Mo.  App.  79 5 

v.  Traction  Co.,  153  Pa.  St  152,  25  Atl.  640 205 

v.  Wakefield,  12  Allen  (Mass.)  580 185 

Holt  v.  Whatley,  51  Ala.  569 85 

Holton  v.  WTaller,  95  Iowa,  545,  64  N.  W.  633 315 

Holtzclaw  v.  Duff,  27  Mo.  392 288 

Holtzman  v.  Hoy,  118  111.  534,  8  N.  E.  832 379 

Holyoke  v.  Railway  Co.,  48  N.  H.  541 206 

Holzab  v.  Railroad  Co.,  38  La.  Ann.  185 207 

Home  Ins.  Co.  v.  Railroad  Co.,  11  Hun  (N.  Y.)  182 353 

Homer  v.  Everett,  47  N.  Y.  Super.  Ct  298 304 

Honegsberger  v.  Railroad  Co.,  2  Abb.  Dec.  (N.  Y.)  378 63 

Honey  v.  Railway  Co.,  59  Fed.  423 61 

Honeyman  v.  Railroad  Co.,  13  Or.  332,  10  Pac.  628 271 

Honner  v.  Railroad  Co.,  15  111.  550 130 

Hood  v.  Railroad  Co.,  22  Conn.  1,  502 182,  292,  294 

Hooker  v.  Railway  Co.,  76  Wis.  542,  44  N.  W.  1085 50 

Hooper  v.  Wells,  Fargo  &  Co.,  27  Cal.  11 218,  253 

Hope  v.  Railroad  Co.,  40  Hun  (N.  Y.)  438 54 

Hopkins  v.  Westcott,  6  Blatchf.  64,  Fed.  Cas.  No.  6,692 248,  260,  270 

Hoppe  v.  Railway  Co.,  61  Wis.  357,  359,  21  N.  W.  227 63,  410 

Hopping  v.  Quin,  12  Wend.  (N.  Y.)  517 374 

Horton  v.  Mayor,  etc.,  4  Lea  (Tenn.)  39 450 

v.  Newell,  17  R.  I.  571,  23  Atl.  910 441 

Hoth  v.  Peters,  55  Wis.  405,  13  N.  W.  219 84 

Hotiok  v.  Railway  Co.,  38  Fed.  226 195 

Houfe  v.  Town  of  Fulton,  34  Wis.  608 446 

Hough  v.  Railway  Co..  100  U.  S.  213 84,  SO,  91,  92,  117,  120,  132 

Houghkirk  v.  Canal  Co.,  92  N.  Y.  219 411 

28  Hun  (X.  Y.)  407 409 

Houlden  v.  Smith,  14  Q.  B.  841 380 

Hourigan  v.  Xowell,  110  Mass.  470 369 

House  v.  Metcalf ,  27  Conn.  631 313 

Houseman  v.  Transportation  Co.,  104  Mich.  300,  62  X.  W.  290 235 

Houston  v.  Traphagen,  47  N.  J.  Law,  23 309 

Houston,  E.    &    W.  T.  Ry.  Co.    v.    Xorris    (Tex.    Civ.    App.)  41    S.    W. 

70S 41,  196,  204,  206 


520  CASES  CITED. 

Page 
Houston,   E.  &  W.  T.   Ry.  Co.   v.   Richards   (Tex.   Civ.   App.)   49   S.   W. 

687    202,  204 

v.  Rogers  (Tex.  Civ.  App.)  40  S.  W.  201 210 

Houston  &  T.  C.  Ry.  Co.  v.  Arey  (Tex.  Civ.  App.)  44  S.  W.  894 199 

v.  Burke,   55   Tex.  323 239 

v.  Carson,  66  Tex.  345,  1  S.  W.  107 51 

v.  Clemmons,  55  Tex.  88 19G 

v.  Conrad,  62  Tex.  627 109 

v.  Cowser,  57  Tex.  293 410,  411 

v.  Dotson  (Tex.  Civ.  App.)  38  S.  W.  642 180 

v.  Ford,  53  Tex.  364 199 

v.  Hampton,  64  Tex.  427 188 

v.  Laskowski  (Tex.  Civ.  App.)  47  S.  W.  59 325,  340 

v.  Moore,  49  Tex.  31 187,  191 

v.  Nixon,  52  Tex.  19 328 

v.  O'Neal  (Tex.  Civ.  App.)  45  S.  W.  921 85 

v.  Park,  1  White  &  W.  Civ.  Cas.  Ct.  App.  §  332 293 

v.  Patterson  (Civ.  App.)  48  S.  W.  747 150 

v.  Pereira  (Tex.  Civ.  App.)  45  S.  W.  767 334 

v.  Reason,  61  Tex.  613 • 78 

v.  Rogers  (Tex.  Civ.  App.)  30  S.  W.  1112 328 

v.  Sgalinski  (Tex.  Civ.  App.)  46  S.  W.  113 32 

v.  Simpson,  60  Tex.  103 67 

v.  Smith,  52  Tex.  178 78 

v.  Stuart  (Civ.  App.)  48  S.  W.  799 150 

v.  Sympkins,  54  Tex.  615 78 

v.  Washington  (Tex.  Civ.  App.)  30  S.  W.  719 193 

Hovenden  v.  Railroad  Co.,  ISO  Pa.  St.  244,  36  Atl.  731 335 

Hovey  v.  Mayo,  43  Me.  322 438 

Howard  v.  Canal  Co.,  40  Fed.  195 412 

v.  City  and  County  of  San  Francisco,  51  Cal.  52 452 

v.  City  of  Worcester,  153  Mass.  426,  27  N.  E.  11 440 

v.  Doolittle,  3  Duer  (N.  Y.)  464 315 

v.  Grover,  28  Me.  97 378 

v.  Railroad  Co.,  32  Minn.  214,  20  N.  W.  43 325 

Howard,  The,  v.  Wissman,  18  How.  231 234 

Howd  v.  Railroad  Co.,  50  Miss.  178 148 

Howe  v.  Ohmart,  7  Ind.  App.  32,  33  N.  E.  466 18 

v.  Railroad  Co.,  62  Minn.  71,  64  N.  W.  102 330,  337 

Howell  v.  Com'rs,  121  N.  C.  362,  28  S.  E.  362 401 

Hower  v.  Ulrich,  156  Pa.  St.  410,  27  Atl.  37 171,  172 

Howland  v.  Inhabitants,  159  Mass.  434,  34  N.  E.  515 444 

Hoy  v.  Sterrett,  2  Watts  (Pa.)  327 318 

Hoyle  v.  Laundry  Co.,  95  Ga.  34,  21  S.  E.  1001 Ill 

Hoyt  v.  City  of  Danbury,  69  Conn.  341,  37  Atl.  1051 432,  433 

v.  Jeffers,  30  Mich.  181 352 

Hrebrik  v.  Carr,  29  Fed.  298 209 

Hubbard  v.  Express  Co.,  10  R.  I.  244 219,  229 

v.  Railroad  Co.,  162  Mass.  132,  38  N.  E.  366 334,  337 


CASES  CITED.  521 

Page 

Huber  v.  Jackson  &  Sharp  Co.,  1  Marv.  374,  41  Atl.  92 90,  91,  109,  121 

Huberwald  v.  Railroad  Co.,  50  La.  Ann.  477,  23  South.  474 404 

Hudon  v.  City  of  Little  Falls,  68  Minn.  463.  71  N.  W.  678 434 

Hudson  v.  Houser,  123  Ind.  309,  24  N.  E.  243 407,  419 

v.  Railway  Co.,  92  Iowa,  231,  60  N.  W.  608 234.  239 

123  Mo.  445,  27  S.  \V.  717 335 

Hudston  v.  Railroad  Co.,  10  Best  &  S.  504 271 

Huff  v.  Ames,  16  Neb.  139,  19  N.  W.  623 71 

v.  Ford,  126  Mass.  24 156 

Hufford  v.  Railway  Co.,  53  Mich.  118,  18  X.  W.  580 198,  199 

Hughes  v.  City  of  Lawrence,  160  Mass.  474,  36  N.  E.  485 437 

v.  Improvement  Co.,  55  Pac.  119 150 

v.  Macfie,  2  Hurl.  &  C.  744 70 

v.  Railway  Co.,  39  Ohio  St.  461 161 

Hughson  v.  Railroad  Co.,  2  App.  D.  C.  98 129 

9  App.  D.  C.  98 190 

Hulbert  v.  Railroad  Co.,  40  N.  Y.  145 179,  208 

Hulett  v.  Railroad  Co.,  67  Mo.  239 109 

Hull  v.  Railway  Co.,  41  Minn.  510,  43  N.  W.  391 239 

Hume  v.  City  of  New  York,  47  N.  Y.  639 438 

Humphrey  v.  Hathorn,  24  Barb.  (N.  Y.)  278 : 381,  382 

Humphreys  v.  Perry,  148  U.  S.  627,  13  Sup.  Ct.  711 273 

v.  Reed,   6  Whart.    (Pa.)   435 216 

Hunn  v.  Railroad  Co.,  78  Mich.  513,  44  N.  W.  502 136,  412,  413 

Hunnewell  v.  Taber,  2  Spr.  1,  Fed.  Cas.  No.  6,880 223 

Hunt  v.  City  of  Boonville,  65  Mo.  620 445 

v.  Gaslight  Co.,  1  Allen  (Mass.)  343 53 

v.  Railroad  Co.,  14  Mo.  App.  160 19,  26 

Hunter  v.  Bridge,  29  C.  C.  A.  206,  85  Fed.  379 146 

v.  Caldwell,  10  Q.  B.  69 ,  375 

v.  Pelham  Mills,  52  S.  C.  279,  29  S.  E.  727 319 

v.  Railway  Co.  (Mont.)  57  Pac.  140 328 

Huntingdon  &  B.  T.  R.  Co.  v.  Decker,  84  Pa.  St.  419 97 

Huntington  v.  Dinsmore,  4  Hun  (N.  Y.)  66,  6  Thomp.  &  C.  (N.  Y.)  195 257 

v.  Rumnill,  3  Day  (Conn.)  390 375 

Huntley  v.  Bulwer,  6  Bing.  N.  C.  Ill 374 

Huntress,  The,  2  Ware,  89  (Dav.  82),  Fed.  Cas.  No.  6,914 232 

Huntress  v.  Railroad  Co.,  66  N.  H.  185,  34  Atl.  154 340 

Huntsinger  v.  Trexler,  181  Pa.  St.  497,  37  Atl.  574 97 

Hurford  v.  City  of  Omaha,  4  Neb.  336 439 

Hurst  v.  Railroad  Co.,  49  Iowa,  76 171 

84  Mich.  539,  48  N.  W.  44 395.  415,  416 

Hurt  v.  Railway  Co.,  94  Mo.  255,  7  S.  W.  1 ISO,  181 

Hurwitz  T.  Packet  Co.  (City  Ct.  N.  Y.)  56  N.  Y.  Supp.  379 271,  289 

Hussey  v.  The  Saragossa,  3  Woods,  380,  Fed.  Cas.  No.  6.949 218 

Huston  v.  City  of  Council  Bluffs,  101  Iowa,  33,  69  N.  W.  1130 432.  434 

Hutchings  v.  Inhabitants,  90  Me.  131,  37  Atl.  883 432,  437 

v.  Railroad  Co.,  25  Ga.  61 270,  271 

Hutchins  v.  Railway  Co.,  44  Minn.  5,  46  X.  W.  79 401,  405,  411,  414 


522  CASES  CITED. 

Page- 
Hutchinson  v.  guion,  28  Law  J.  C.  P.  63,  5  C.  B.  (N.  S.)  149 223 

v.  Railway  Co.  (1850)  5  Exch.  343 124 

37  Minn.  524,  35  N.  W.  433 232 

Hutson  v.  King,  95  Ga.  271,  22  S.  E.  615 49,  309- 

Button  v.  Windsor,  34  U.  C.  Q.  B.  487 407 

Huyett  v.  Railroad  Co.,  23  Pa.  St.  373 354 

Hyatt  v.  Railroad  Co.,  19  Mo.  App.  287 121 

v.  Trustees,  44  Barb.  (N.  Y.)  385 449- 

Hyde  v.  Kiehl,  183  Pa.  St.  414,  38  Atl.  998 383 

v.  Navigation  Co.,  5  Term  R.  389 215,  227,  283 

Hyer  v.  City  of  Janesville,  101  Wis.  371,  77  N.  W.  729 434 

Hygienic  Plate  Ice  Mfg.  Co.  v.  Railroad  Co.,  122  N.  C.  881,  29  S.  E.  575. ..     8T 
Hysore  v.  Quigley,  9  Houst.  348,  32  Atl.  960 316 

I 

Idaho,  The,  93  U.  S.  575 29T 

Idel  v.  Mitchell,  158  N.  Y.  134,  52  N.  E.  740 317 

Ihl  v.  Railroad  Co.,  47  N.  Y.  317 63,  64,  68,  72,  409,  415 

Illick  v.  Railroad  Co.,  67  Mich.  632,  35  N.  W.  708 116 

Illidge  v.  Goodwin,  5  Car.  &  P.  190 11,  25,  27 

Illinois  Cent.  R.  Co.  v.  Able,  59  111.  131 180 

v.  Adams,  42  111.  474 222,  244 

v.  Andrews,  78  111.  App.  80 .<• 155,  158- 

v.  Axley,  47  111.  App.  307 188 

v.  Baches,  55  111.  379 412 

v.  Barren,  5  Wall.  90,  95 405,  412,  414 

v.  Bauer,  66  111.  App.  124 184 

v.  Beebe,  174  111.  13,  50  N.  E.  1019 202,  212 

v.  Benton,  69  111.  174 323 

v.  Brelsford,  13  111.  App.  251 234 

v.  Buckner,  28  111.  299 75,  33$ 

v.  Carter,  62  111.  App.  618 285 

165  111.  570,  46  N.  E.  374 283 

v.  Chambers,  71  111.  519 180 

v.  Copeland,  24  III.  332 182,  270,  293,  295 

v.  Cox,  21  111.  20 128-130 

v.  Cragin,  71  111.  177 76,  401,  402 

v.  Downey,  18  111.  259 169 

v.  Finnigan,  21  111.  646 54 

v.  Frankenberg,  54  111.  88 293,  295 

v.  Frelka,  110  111.  498 189,  211 

v.  Gilbert,  51  111.  App.  404 93 

v.  Hall,  58  111.  409 232 

v.  Hilliard  (Ky.)  37  S.  W.  75 147 

v.  Hoffman,  67  111.  287 51,  211,  338 

v.  Hutchinson,  47  111.  408 78 

v.  Johnson,  34  111.  3S9 293,  295 

v.  Jones,  11  111.  App.  324 91 


CASES  CITED.  523 

Page 

Illinois  Cent.  E.  Co.  v.  Jones,  16  South.  (Miss.)  300 148 

v.  Jonte,  13  111.  App.  424 258 

v.  Kerr,  68  Miss.  14,  8  South.  330 292,  293 

v.  McCalip  (Miss.)  25  South.  166 31 

v.  McClelland,  42  111.  355 354,  359 

v.  McCowan,  70  111.  App.  345 135 

v.  McKee,  43  111.  119 348 

v.  Marlett,  75  Miss.  956,  23  South.  583 183,  196,  199 

V.  Mills,  42  111.  407,  408 353,  355,  357 

V.  Morrison,  19  111.  136 244 

v.  Phelps,  29  111.  447 343 

V.  Phillips,  49  111.  234 204 

v.  Head,  37  111.  484 212,  244 

v.  Scruggs,  69  Miss.  418,  13  South.  698 266 

v.  Slater,  129  111.  91,  21  N.  E.  575 409 

28  111.  App.  73 412,  41S 

v.  Smyser,  38  111.  354 244,  279,  28O 

v.  Swearingen,  33  111.  289 347 

v.  Swisher,  53  111.  App.  411 Ill 

v.  Taylor,  46  111.  App.  141 181 

v.  Treat,  75  111.  App.  327 208 

v.  Weldon,  52  111.  290 407 

v.  Whittemore,  43  111.  420 179,  184,  185,  201 

Illinois  &  St.  L.  R.  Co.  v.  Whalen,  19  111.  App.  116 411 

Ilott  v.  Wilkes,  3  Barn.  &  Aid.  304 30$ 

Imhoff  v.  Railway  Co.,  20  Wis.  344 179 

Ince  v.  Ferry  Co..  106  Mass.  149 35 

Independence  Mills  Co.  v.  Railway  Co.,  72  Iowa,  535,  34  N.  W.  320 288 

Indiana,  B.  &  W.  Ry.  Co.  v.  Burdge,  94.  Ind.  46 8 

v.  Craig,  14  111.  App.  407 354 

v.  Greene,  106  Ind.  279,  6  N.  E.  603 87 

Indiana  Car  Co.  v.  Parker,  100  Ind.  181 146 

Indiana  Cent.  Ry.  Co.  v.  Hudelson,  13  Ind.  325 178 

v.  Mundy,  21  Ind.  48 212 

Indiana,  I.  &.  I.  Ry.  Co.  v.  Doremeyer,  20  Ind.  App.  605,  50  N.  E.  497 232 

v.  Snyder,  140  Ind.  647,  39  N.  E.  912 147 

Indiana  Pipe-Line  &  Refining  Co.  v.  Neusbaum,  21  Ind.  App.  559,  52  N.  E. 

471 94 

Indianapolis,  B.  &  W.  Ry.  Co.  v.  Carr,  35  Ind.  510 41 

v.  Strain,  81  111.  504 245 

Indianapolis,  P.  &  C.  R.  Co.  v.  Keely's  Adm'r,  23  Ind.  133 403,  416 

v.  Pitzer,  109  Ind.  179,  6  N.  E.  310,  10  N.  E.  70 206 

v.  Rinard,  46  Ind.  293 191 

v.  Shinier,  17  Ind.  295 348 

Indianapolis  Union  Ry.  Co.  v.  Ott,  11  Ind.  App.  564,  35  N.  E.  517,  38  X.  E. 

842 121 

Indianapolis  &  C.  R.  Co.  v.  Cox,  29  Ind.  360,  95  Am.  Dec.  640 258- 

v.  Parker.  29  Ind.  471 347 

v.  Rutherford,  29  Ind.  82 86 


-524  CASES  CITED. 

Page 

Indianapolis  &  C.  R.  Co.  v.  Townsend,  10  Ind.  38 %. 345 

Indianapolis  &  St.  L.  R.  Co.  v.  Galbreath,  63  111.  436 ". 326 

v.  Horst,  93  U.  S.  291 84,  191,  202 

v.  Smith,  78  111.  112 326 

v.  Stout,  53  Ind.  143 326 

Indiana  Stone  Co.  v.  Stewart,  7  Ind.  App.  563,  34  N.  E.  1019 38 

Indiana  &  C.  R.  Co.  v.  Paramore,  31  Ind.  143 353 

Ingalls  v.  Bills,  9  Mete.  (Mass.)  1 29,  54,  203 

Ingebretsen  v.  Steamship  Co.  (N.  J.  Err.  &  App.)  31  Atl.  619 148 

Ingersoll  v.  Railroad  Co.,  8  Allen  (Mass.)  438 209,  352 

Ingwersen  v.  Rankin,  47  N.  J.  Law,  18 314 

Inhabitants  of  Norton  v.  Inhabitants,  16  Mass.  48 444 

Inhabitants  of  Plantation  No.  4  v.  Hall,  61  Me.  517 294 

Inhabitants  of  Shrewsbury  v.  Smith,  12  Gush.  (Mass.)  177 319 

Inhabitants  of  Yarmouth  v.  Inhabitants,  34  Me.  411 424 

Inland  &  Seaboard  Coasting  Co.  v.  Tolson,  139  U.  S.  551,  11  Sup.  Ct.  653. .     37 

Inman  v.  Tripp,  11  R.  I.  520 444 

International  &  G.  N.  Ry.  Co.  v.  Anderson,  3  Tex.  Civ.  App.  8,  21  S.  W. 

691    236,  292 

v.  Bonatz  (Tex.  Civ.  App.)  48  S.  W.  767 151 

v.  Cooper,  88  Tex.  607,  32  S.  W.  517 158 

v.  Davis  (Tex.  Civ.  App.)  43  S.  W.  54.0 188 

v.  Dunham,  68  Tex.  231,  4  S.  W.  472 209 

v.  Eckford,  71  Tex.  274,  8  S.  W.  679 180 

v.  Foltz,  3  Tex.  Civ.  App.  644,  22  S.  W.  541 296 

v.  Gilmer  (Tex.  Civ.  App.)  45  S.  W.  1028 206 

v.  Halloren,  53  Tex.  46 23 

v.  Hynes,  3  Tex.  Civ.  App.  20,  21  S.  W.  622 23,  236 

v.  Kindred,  57  Tex.  491 397,  413 

T.  Kuehn,  11  Tex.  Civ.  App.  21,  31  S.  W.  322 36 

v.  Mclver  (Tex.  Civ.  App.)  40  S.  W.  438 14 

v.  Miller,  9  Tex.  Civ.  App.  104,  28  S.  W.  233 158 

v.  Newman  (Tex.  Civ.  App.)  40  S.  W.  854 356 

v.  Parish  (Tex.  Civ.  App.)  43  S.  W.  1066 239 

v.  Ryan,  82  Tex.  565,  18  S.  W.  219,  221 133,  149 

v.  Satterwhite  (Tex.  Civ.  App.)  38  S.  W.  401;   47  S.  W.  41 211 

v.  Sipole  (Tex.  Civ.  App.)  29  S.  W.  686 150 

v.  Smith  (Tex.  Sup.)  14  S.  W.  642 180 

30  S.  W.  (Tex.  Civ.  App.)  501 106 

v.  Terry,  62  Tex.  380 180 

v.  Timmermann,  61  Tex.  660 357 

v.  Tisdale,  74  Tex.  8,  11  S.  W.  900 235,  292,  293 

v.  Underwood,  62  Tex.  21 251 

T.  Welch,  86  Tex.  203,  24  S.  W.  391 202 

v.  Wentworth,  8  Tex.  Civ.  App.  5,  27  S.  W.  6SO 224,  226,  236 

v.  Wilkes,  68  Tex.  617,  5  S.  W.  491 201 

v.  Wolf,  3  Tex.  Civ.  App.  383,  22  S.  W.  187 296 

T.  Yarbrough  (Tex.  Civ.  App.)  39  S.  W.  1096 158 

v.  Zapp  (Tex.  Civ.  App.)  49  S.  W.  673 .151 


CASES  CITED.  525 

Pagfr 

Ionic,  The,  5  Blatchf.  538,  Fed.  Cas.  No.  7,059 231,  271 

Irish  v.  Railway  Co.,  19  Minn.  376  (Gil.  323) 29± 

Iron  Mountain  R.  Co.  v.  Dies,  98  Tenn.  655,  41  S.  "W.  8GO 32 

Iron  R.  Co.  v.  Mowery,  36  Ohio  St.  418 40 

Irvin  v.  Railway  Co.  (Tex.  Civ.  App.)  42  S.  W.  661 a 

Irvine  v.  Mayor,  etc.  (Tenn.  Sup.)  47  S.  W.  419 450 

Isaacs  v.  Railroad  Co.,  47  X.  Y.  122 170 

Isaacson  v.  Railroad  Co.,  94  N.  Y.  278 258,  291 

Isabel  v.  Railroad  Co.,  60  Mo.  475 62,  63 

Isabella,  The,  8  Ben.  139,  Fed.  Cas.  No.  7,099 257 

Isbell  v.  Railroad  Co.,  27  Conn.  393 51,  338,  342,  343 

Iseman  v.  Railroad  Co.,  52  S.  C.  566,  30  S.  E.  488 184 

Isham  v.  Parker,  3  Wash.  St.  755,  29  Pac.  835 372 

Izett  y.  Mountain,  4  East,  371 238 

J 

Jackson  v.  City  of  Greenville,  72  Miss.  220,  16  S.  W.  382 436 

7.  Railway  Co.,  23  Cal.  268 288 

31  Iowa,  176 353,  354 

87  Mo.  422 39& 

118  Mo.  199,  24  S.  W.  192 202 

25  Vt.  150 343 

43  W.  Va.  380,  27  S.  E.  278,  31  S.  E.  258 150 

v.  Telephone  Co.,  88  Wis.  243,  60  N.  W.  430 22,  24 

Jackson  Architectural  Iron  Works  v.  Hurlbut,  158  N.  Y.  34,  52  N.  E.  665..217,  220- 

Jacksonville  S.  E.  Ry.  Co.  v.  Southworth,  135  111.  250,  25  N.  E.  1093 5 

Jacksonville,  T.  &  K.  W.  Ry.  Co.  v.  Galvin,  29  Fla.  636,  11  South.  231 108- 

v.  Mfg.  Co.,  27  Fla.  1,  157,  9  South.  661 10 

Jacobs  v.  Tutt,  33  Fed.  412 272,  289 

Jacobus  v.  Railway  Co.,  20  Minn.  125  (Gil.  110) 190,  212 

Jaffe  v.  Harteau,  56  N.  Y.  398 315 

Jagger  v.  Bank,  53  Minn.  386,  55  N.  W.  545 100 

James  v.  Christy,  18  Mo.  162 391 

v.  Griffin,  2  Mees.  &  W.  623 298 

v.  Railroad  Co.,  92  Ala.  231,  9  South.  335 415- 

James'  Adm'r  v.  McMinimy,  93  Ky.  471,  20  S.  W.  435 166 

Jamison  v.  Railroad  Co.,  55  Cal.  593 208 

v.  Weaver,  81  Iowa,  212,  46  N.  W.  996 373 

Jaques  v.  Mfg.  Co.,  66  N.  H.  482,  22  Atl.  552 133,  148 

Jardine  v.  Cornell,  50  N.  J.  Law,  485,  14  Atl.  590 186. 

Jarnek  v.  Dock  Co.,  97  Wis.  537,  73  N.  W.  62 151 

Jefferson  v.  Jameson  &  Morse  Co.,  60  111.  App.  587 316 

165  111.  138,  46  N.  E.  272 161 

Jefferson  R.  Co.  v.  Cleveland,  2  Bush    (Ky.)  468 287 

Jeffersonville,  M.  &  I.  R.  Co.  v.  Bowen,  40  Ind.  545 66 

v.  Hendricks,  41  Ind.  49 403,  416,  417,  420 

v.  Riley,  39  Ind.  5G8,  584 179,  206- 


526  CASES  CITED. 

Page 

Jeffersonville  R.  Co.  v.  Swayne's  Adm'r,  26  Ind.  477 401,  402 

Jeffrey  v.  Bigelow,  13  Wend.  (N.  Y.)  518 365 

v.  Railroad  Co.,  56  Iowa,  546,  9  N.  W.  884 42 

Jencks  v.  Coleman,  2  Sumn.  221,  Fed.  Cas.  Xo.  7,258 192 

v.  Railroad  Co.,  33  App.  Div.  635,  53  N.  Y.  Supp.  623 330 

Jenkins  v.  McGill,  4  How.  Prac.  (N.  Y.)  205 382 

v.  Railway  Co.,  41  Wis.  112 187 

v.  Turner,  1  Ld.  Raym.  109 364 

Jenkinson  v.  Carlin,  10  Misc.  Rep.  22,  30  N.  Y.  Supp.  530 133 

Jenks  v.  Fulmer,  160  Pa.  St.  527,  28  Atl.  841 298 

Jenney  Electric  Light  &  Power  Co.  v.  Murphy,  115  Ind.  566,  18  N.  E.  30 112 

Jennings  v.  Iron  Bay  Co.,  47  Minn.  Ill,  49  N.  W.  685 96 

v.  Railway  Co.  (Sup.)  5  N.  Y.  Supp.  140 252 

93   Pa.   St.  337 358 

v.  Van  Schaick,  108  N.  Y.  530,  15  N.  E.  424 42 

Jensen  v.  City  of  Waltham,  166  Mass.  344,  44  N.  E.  339 443 

v.  The  Joseph  B.  Thomas,  81  Fed.  578 18,  21,  151 

v.  Railroad  Co.,  102  Mich.  176,  60  N.  W.  57 337 

Jewell  v.  Railway  Co.,  55  X.  H.  84 156 

Jewett  v.  Keene,  62  N.  H.  701 421 

v.  Olsen,  18  Or.  419,  23  Pac.  262 233 

Joch  v.  Dankwardt,  85  111.  331 98 

Joel  v.  Morrison,  6  Car.  &  P.  501 173 

Johanson  v.  Fuel  Co.  (Minn.)  75  N.  W.  719 170 

Johnson  v.  Bank,  79  Wis.  414,  48  X.  W.  712 151 

v.  Brice  (Wis.)  78  N.  W.  1086 388 

v.  City  of  Boston,  118  Mass.  114 129 

v.  City  of  Milwaukee,  46  Wis.  568,  1  X.  W.  187 437 

v.  Improvement  Co.,  13  Wash.  455,  43  Pac.  370 85 

v.  Mining  Co.,  16  Mont.  164,  40  Pac.  298 91 

v.  Xavigation  Co.,  132  N.  Y.  576,  30  N.  E.  505 128 

v.  Patterson,  14  Conn.  1 308 

V.  Railroad  Co.,  104  Ala.  241,  16  South.  75 77,  185 

6  Duer  (N.  Y.)  633;  20  N.  Y.  64,  65 84,  322,  323 

16  Fla.  623 200 

90  Ga.  810,  17  S.  E.  121. 234 

61  111.   App.  522 78 

-  58  Iowa,  348,  12  N.  W.  329 169 

27  La.  Ann.  53 51 

63  Md.  106 179,  200 

125  Mass.  75 179 

43  Minn.  53,  44  N.  W.  884 115 

43  Minn.  207,  45  X.  W.  152 341 

67  Minn.  260,  69  N.  W.  900 73 

33  N.  Y.  610 224,  291 

7  N.  D.  284,  75  N.  W.  250 327 

70  Pa.  St.  357 21,  182 

53  S.  C.  303,  31  S.  E.  212 211 

2  Tex.  Civ.  App.  139,  21  S.  W.  274 32 


CASES  CITED.  527 

Page 

Johnson  v.  Railroad  Co.,  36  W.  Va,  73,  14  S.  E.  432 150 

64  Wis.  425,  25  N.  W.  223 412 

v.  Railroad  Corp.,  46  N.  H.  213 108,  199 

v.  Randall  (Minn.)  76  N.  W.  791 '382 

v.  Schlosser,  146  Ind.  509,  45  X.  E.  702,  36  Lawy.  Rep.  Ann.  59 38b 

v.  Snuff  Co.  (N.  J.  Err.  &  App.)  41  Atl.  936 108 

v.  Spear,  76  Mich.  139,  42  N.  W.  1092 128 

v.  Telephone  Exch.  Co.,  48  Minn.  433,  51  N.  W.  225 18,  19 

v.  Tow-Boat  Co.,  135  Mass.  209 138 

Johnson's  Adm'r  v.  Railway  Co.,  91  Va.  171,  21  S.  E.  238 332 

Johnson's  Adm'x  v.  Railroad  Co.,  84  Va.  713,  5  S.  E.  707 150 

Johnston  v.  Davis,  60  Mich.  56,  26  N.  W.  830 284 

v.  District,  1  Mackey  (D.  C.)  427 429 

v.  Railroad  Co.,  7  Ohio  St.  336 415 

Joliet  Steel  Co.  v.  Shields,  134  111.  209,  25  N.  E.  569 130 

Jolly's  Adm'x  v.  City  of  Hawesville,  89  Ky.  279,  12  S.  W.  313 443 

Jones  v.  Boyce,  1  Starkie,  493 40 

v.  City  of  Liverpool,  14  Q.  B.  Div.  890 448 

v.  City  of  New  Haven,  34  Conn.  1 425,  436,  454 

v.  Fay,  4  Post  &  F.  525,  526 378 

v.  File  Co.  (R.  I.)  42  Atl.  509 121 

v.  Gilmore,  91  Pa.  St.  310,  314 225 

v.  Glass,   35  N.    C.   305 169 

v.  Granite  Mills,  126  Mass.  84 91 

v.  Inhabitants,  10  Allen  (Mass.)  18,  20 47 

v.  Lamon,  92  Ga.  529,  18  S.  E.  423 • 383 

y.  Railroad  Co.,  107  Ala.  400,  18  South.  30 37 

28  Hun  (N.  Y.)  364 88 

36  Hun  (N.  Y.)  115 66 

163  Mass.  245,  39  N.  E.  1019 177 

59  Mo.  App.  137 346 

125  Mo.  666,  28  S.  W.  883 148,  190 

70  N.  C.  626 344 

(La.)  26  South.  86 95 

Y.  Shaw  (Tex.  Civ.  App.)  41  S.  W.  690 91 

v.  Transportation  Co.,  50  Barb.  (N.  Y.)  193 289 

v.  Voorhees,  10  Ohio,  145 254 

v.  Vroom,  8  Colo.  App.  143,  45  Pac.  234 377 

Jonesboro  &  F.  Turnpike  Co.  v.  Baldwin,  57  Ind.  86 86 

Jordan  v.  Railroad  Co.,  5  Gush.  (Mass.)  69 270 

v.  Wyatt,  4  Grat.  (Va.)  151 350 

Jordin  v.  Crump,  8  Mees.  &  W.  782 308 

Joslin  v.  Ice  Co.,  50  Mich.  516,  15  N.  W.  887 173 

Joy  v.  Morgan,  35  Minn.  184,  28  N.  W.  237 373 

Joyce  v.  Capel,  8  Car.  &  P.  370 157 

v.  Martin,  15  R.  I.  558,  10  Atl.  620 313,  314 

Jucker  v.  Railway  Co.,  52  Wis.  150,  8  N.  W.  862 399 

Judson  v.  Railroad  Co.,  158  N.  Y.  597,  53  N.  E.  514 330 

v.  Railroad  Corp..  4  Allen  (Mass.)  520 280 


528  CASES  CITED. 

Page 

Judson  v.  Railroad  Corp.,  6  Allen  (Mass.)  486 256,  26O 

v.  Railway  Co.,  63  Minn.  248,  65  N.  W.  447 330,  337,  338 

Jung  v.  Starin,  12  Misc.  Rep.  362,  33  N.  Y.  Supp.  650 19,  25 

Jungnitsch  v.  Iron  Co.,  105  Mich.  270,  63  N.  W.  296 97 

Justice  v.  Pennsylvania  Co.,  130  Ind.  321,  30  N.  E.  303 146 


K 

Kain  v.  Smith,  80  N.  Y.  458 102 

89  N.  Y.  375 118 

Kaiser  v.  Hoey  (City  Ct.  N.  Y.)  1  N.  Y.  Supp.  429 251 

v.  McLean,  20  App.  Div.  326,  46  N.  Y.  Supp.  1038 169 

Kalbfleisch  v.  Railroad  Co.,  102  N.  Y.  520,  7  N.  E.  557 359 

Kallman  v.  Express  Co.,  3  Kan.  205 219 

Kammerer  v.  Gallagher,  58  111.  App.  561 82 

Kansas  Cent  Ry.  Co.  v.  Fitzsimmons,  22  Kan.  686 69 

Kansas  City,  Ft.  S.  &  G.  R.  Co.  v.  Morrison,  34  Kan.  502,  9  Pac.  225. .  .269,  280 

Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Cook,  13  C.  C.  A.  364,  66  Fed.  115 328 

v.  Daughtry,  88  Tenn.  721,  13  S.  W.  698 398 

v.  Hammond,  58  Ark.  324,  24  S.  W.  723 102 

v.  McGahey,  63  Ark.  344,  38  S.  W.  659 289 

v.  Patten,  3  Kan.  App.  338,  45  Pac.  108 289 

Kansas  City,  L.  &  S.  R.  Co.  v.  Phillibert,  25  Kan.  405 84 

Kansas  City,  M.  &  B.  R.  Co.  v.  Burton,  97  Ala.  240,  12  South.  88 25 

v.  Crocker,  95  Ala.  412 145 

v.  Higdon,  94  Ala.  286,  10  South.  282 271 

v.  Holland,  68  Miss.  351,  8  South.  516 253 

v.  Lackey,  114  Ala.  152,  21  South.  444 35 

Kansas  City,  St.  J.  &  C.  B.  R.  Co.  v.  Rodebaugh,  38  Kan.  45,  15  Pac.  899. .  258 

v.  Simpson,  30  Kan.  645,  2  Pac.  821 248,  219,  266 

Kansas  City  &  P.  R.  Co.  v.  Ryan,  52  Kan.  637,  35  Pac.  292 91 

Kansas  Pac.  Ry.  Co.  v.  Butts,  7  Kan.  308 353 

v.  Cranmer,  4  Colo.  524 51 

v.  Cutter,  16  Kan.  568 403 

19  Kan.   83 405,  414 

v.  Miller,  2  Colo.  442 203 

v.  Nichols,  9  Kan.  235 262 

v.  Pointer,  14  Kan.  37 80 

v.  Reynolds,  8  Kan.  623 219,  261 

17  Kan.   251 252 

v.  Salmon,  14  Kan.  512 417 

Kansas  &  A.  V.  Ry.  Co.  v.  Ayers,  63  Ark.  331,  38  S.  W.  515 266 

Karahuta  v.  Traction  Co.,  6  Pa.  Super.  Ct.  319 64 

Karle  v.  Railroad  Co.,  55  Mo.  476 328 

Karr  v.  Parks,  40  Cal.  188 64,  70 

Kastor  v.  Newhouse,  4  E.  D.  Smith  (N.  Y.)  20 311 

Katcham  v.  Newman  (1894)  141  N.  Y.  205,  36  N.  E.  197 158 

Kaufhold  v.  Arnold,  163  Pa.  St.  269,  29  Atl.  883 118 


CASES  CITED.  529 

Page 

Kay  v.  Railroad  Co.,  65  Pa.  St.  269,  277 63,  323 

Y.  Thomson,  10  Am.  Law  Reg.  (X.  S.)  594 378 

Kayser  Y.  Lindell  (Minn.)  75  N.  W.  1038 306 

Kean  v.  Chenault  (Ky.)  41  S.  W.  24 344 

Y.  Railroad  Co.,  61  Md.  154 78 

Kearney  Y.  Railroad  Corp.,  9  Cush.  (Mass.)  108 398 

Keating  Y.  City  of  Kansas  City,  84  Mo.  415 450 

Y.  Railroad  Co.,  3  Lans.  (N.  Y.)  469 208 

Keats  v.  Machine  Co.,  13  C.  C.  A.  221,  65  Fed.  940 105 

Keefe  v.  Railroad  Co.,  92  Iowa,  182,  60  X.  W.  503.  * 38,  52 

Keegan  Y.  Railroad  Co.,  34  App.  DiY.  297,  54  N.  Y.  Supp.  391 202 

Keffe  Y.  Railway  Co.,  21  Minn.  207,  210 69,  70,  306,  307 

Keightlinger  Y.  Egan,  65  111.  235 364,  365 

Keith  Y.  Coal  Co.,  81  Ga.  49,  7  S.  E.  106 146 

Kelham  Y.  The  Kensington,  24  La.  Ann.  100 219 

Keller  Y.  Railroad  Co.,  27  Minn.  178,  6  N.  W.  486 180 

Kellerman  v.  Railroad  Co.,  136  Mo.  177,  34  S.  W.  41,  37  S.  W.  828 252 

Kelley  Y.  City  of  Columbus,  41  Ohio  St.  263 309 

Y.  City  of  Milwaukee,  18  Wis.  83 449,  451 

v.  City  of  Minneapolis  (Minn.)  79  N.  W.  653 437 

v.  Railroad  Co.,  48  Fed.  663 405 

50  Wis.  381,  7  N.  W.  291 407,  416 

53  Wis.  74,  9  N.  W.  816 87 

Kellogg  Y.  City  of  New  York,  15  App.  DiY.  326,  44  N.  Y.  Supp.  39 437 

Y.  Railroad  Co.,  79  N.  Y.  72 334,  414 

26  Wis.  223,  281 16,  355 

v.  Village  of  JanesYille,  34  Minn.  132,  24  N.  W.  359 432 

Kelly  Y.  Cook  (R.  I.)  41  Atl.  571 442 

v.  Mayor,  etc.,  11  N.  Y.  432 447 

v.  Railway  Co.,  70  Mo.  604 87 

112  X.  Y.  443,  20  X.  E.  383 207 

Y.  Transit  Co.,  95  Mo.  279,  8  S.  W.  420 51 

Kelsay  Y.  Railway  Co.,  129  Mo.  Sup.  362,  30  S.  W.  339 340 

Kelsey  Y.  Barney,  12  N.  Y.  425 2 

KelYer  v.  Railroad  Co.,  126  X.  Y.  365,  27  N.  E.  553 345 

Kernber  v.  Express  Co.,  22  La.  Ann.  158 257 

Keinper  Y.  City  of  LouisYille,  14  Bush    (Ky.)  87 438 

Kendall  v.  Brown,  86  111.  387 379 

Keunard  v.  Burton,  25  Me.  39 37,  63 

Kennayde  Y.  Railroad  Co.,  45  Mo.  255 415 

Kennedy  v.  Burrier,  36  Mo.  128 421 

v.  City  of  Xew  York,  18  Misc.  Rep.  303,  41  X.  Y.  Supp.  1077 437 

v.  Iron  Works,  12  Misc.  Rep.  336,  33  X.  Y.  Supp.  630 133 

v.  Railroad  Co.,  74  Ala.  430 288 

33  Hun  CST.  Y.)  457 109 

145  X.  Y.  288,  39  X.  E.  956 112 

v.  Ryall,  67  N.  Y.  379 370 

Kenney  Y.  Railroad  Co.,  49  Hun,  535,  2  N.  Y.  Supp.  512 415 

70  Mo.  243 356 

BAR.XEG— 34 


530  CASES  CITED. 

Page 

Kenney  v.  Railroad  Co.,  125  N.  Y.  422,  26  N.  E.  626 213 

Kent  v.  Board,  10  Q.  B.  Div.  118 455 

Kentucky  Cent.  R.  Co.  v.  Gastineau's  Adni'r,  83  Ky.  119 6 

Kentucky  Hotel  Co.  v.  Camp,  97  Ky.  424,  30  S.  W.  1010 67 

Kenworthy  'v.  Town  of  Irontown,  41  Wis.  647 425 

Keokuk  Northern  Line  Packet  Co.  v.  True,  88  111.  608 179 

Keown  v.  Railroad  Co.,  141  Mo.  86,  41  S.  W.  926 89 

Kepler  v.  Jessupp,  11  Ind.  App.  241,  37  N.  E.  655 372 

Keppleman  v.  Railway  Co.  (Pa.  Sup.)  42  Atl.  697 335 

Ker  v.  Mountain,  1  Esp.  27 193 

Kerns  v.  Railway  Co.,  94  Iowa,  121,  62  N.  W.  692 103 

Kerr  v.  Forgue.  54  111.  482 67,  69 

v.  Willan,  6  Maule  &  S.  150,  2  Starkie,  53 256 

Kerrigan  v.  Railroad  Co.,  81  Cal.  248,  22  Pac.  677 181 

Kerwhaker  v.  Railroad  Co..  3  Ohio  St.  172 3 

Kessler  v.  Railroad  Co.,  61  N.  Y.  538 182 

Ketcham  v.  Newman,  141  N.  Y.  205,  36  N.  E.  197 158,  165,  167 

Khron  v.  Brock,  144  Mass.  516,  11  N.  E.  748 165 

Kibele  v.  City  of  Philadelphia,  105  Pa.  St.  41 42 

Kidder  v.  Barker,  18  Vt.  454 382 

Kies  v.  City  of  Erie,  169  Pa.  St  598,  32  Atl.  621 440 

Kiley  v.  City  of  Kansas,  87  Mo.  103 425,  449,  451 

Killien  v.  Hyde,  63  Fed.  172 41 

Kimball  v.  Cushnmn,  103  Mass.  194 155 

v.  Railroad  Co.,  26  Vt.  247,  256 217,  254,  262 

Kincaid  v.  Railway  Co.,  1  Mo.  App.  Rep'r,  543,  62  Mo.  App.  365 24 

Kinchlow  v.  Elevator  Co.,  57  Ivan.  374,  46  Pac.  703 68,  309 

King  v.  City  of  Kansas  City,  58  Kan.  334,  48  Pac.  88 430 

v.  Fourchy,  47  La.  Ann.  354,  16  South.  814 373 

v.  Jury,  12  La.  Ann.  858 456 

v.  Railway  Co.  (Minn.)  79  N.  W.  611 52 

66  N.  Y.  181 161 

v.  Richards,  9  Whart.  (Pa.)  418 297 

v.  St.  Laundry,  12  La.  Ann.  858 454,  456 

v.  Shepherd,  3  Story,  349,  Fed.  Cas.  No.  7,804 221,  228 

v.  Woodbridge,  34  Vt.  565 257 

Kingman  v.  Denison,  84  Mich.  608,  48  N.  W.  26 298 

Kingsley  v.  Railroad  Co.,  125  Mass.  54 276 

Kingston  v.  Railway  Co.,  112  Mich.  40,  70  N.  W.  315,  74  N.  W.  230 77 

Kinnare  v.  Railway  Co.,  57  111.  App.  153 81 

Kinney  v.  City  of  Troy,  108  N.  Y.  567,  15  N.  E.  728 433 

v.  Koopman,  116  Ala.  310,  22  South.  593 369 

v.  Onsted,  113  Mich.  96,  71  N.  W.  482 50,  306 

Kinnick  v.  Railroad  Co.,  69  Iowa,  665,  29  N.  W.  772 234,  262,  266 

Kinsley  v.  Railroad  Co.,  125  Mass.  54 276,  277 

Kirby  v.  Ass'n,  14  Gray  (Mass.)  249 303 

Kirchner  v.  Myers,  35  Ohio  St.  85 400 

Kirk  v.  Railway  Co.,  59  Minn.  161,  60  N.  W.  1084 285,  287 


CASES  CITED.  531 

Page 

liirkland  v.  Dinsmore,  2  Hun  (X.  Y.)  46,  4  Thonip.  &  C.  (N.  Y.)  304 257 

G2  X.  Y.  171 250.  258 

Kissenger  v.  Railroad  Co.,  56  N.  Y.  538 325 

Kistner  v.  City  of  Indianapolis,  100  Ind.  210 4.50 

Kite-hell  v.  Railroad  Co.,  6  App.  Div.  99,  39  X.  Y.  Supp.  741 67 

Kitteringham  v.  Railway  Co.,  62  Iowa,  285,  17  X.  W.  585 19 

Kittredge  v.  Bellows.  7  X.  H.  399 381 

v.  Elliott,  16  X.  H.  77 363,  364 

Klauber  v.  Express  Co.,  21  Wis.  21 222,  231 

Klein  v.  Jewett,  26  X.  J.  Eq.  474 208 

Kleineck  v.  Reiger  (Iowa)  78  X.  W.  39 367 

Kleng  v.  City  of  Buffalo,  156  X.  Y.  700,  51  X.  E.  1091 434 

Klinker  v.  Iron  Co.,  43  W.  Va.  219,  27  S.  E.  237 87 

Knahtla  v.  Railway  Co.,  21  Or.  136,  27  Pac.  91 149 

Knapp,  Stout  &  Co.  v.  McCaffrey,  178  111.  107,  52  X.  E.  898 217 

Kuauss  v.  Brua,  107  Pa,  St.  85 313 

Knight  v.  Abert,  6  Pa.  St.  472 306,  309 

v.  Fox,  5  Exch.  721 166 

v.  Luce,  116  Mass.  586 .' 169 

v.  Railroad  Co.,  23  La.  Ann.  462;  56  Me.  234;   13  R.  I.  572 

182,  206,  208,  209,  294,  394 

Knisley  v.  Pratt,  148  X.  Y.  372,  42  N.  E.  986 48 

Knoop  v.  Alter,  47  La.  Ann.  570,  17  South.  139 303 

Knostnian  &  Peterson  Furniture  Co.  v.  City  of  Davenport,  99  Iowa,  589,  68 

X.  W.  887 429,  430 

Knott  v.  Railroad  Co.,  98  X.  C.  73,  3  S.  E.  735 294 

Knowles  v.  Bullene,  71  Mo.  App.  341 158,  171 

v.  Railroad  Co.,  102  X.  C.  59,  9  S.  E.  7 186,  201 

Knox  v.  Railway  Co.  (Tenn.  Sup.)  47  S.  W.  491 149 

Knox  Co.  v.  Montgomery,  109  Ind.  69,  9  X.  E.  590 456 

Knoxville,  C.  G.  &  K  R.  Go.  v.  Wyrick,  99  Tenn.  500,  42  S.  W.  434 405 

Knoxville  Iron  Co.  v.  Dobson,  7  Lea   (Tenn.)  367 149 

Knupfle  v.  Ice  Co.,  23  Hun,  159;   84  X.  Y.  488 46 

Kobs  v.  City  of  Minneapolis,  22  Minn.  160 425 

Koehne  v.  Railway  Co.,  32  App.  Div.  4J.9,  52  X.  Y.  Supp.  1088 202 

Kohn  v.  Lovett,  44  Ga.  251 308,  310 

Kolb  v.  Carringtou.  75  111.  App.  159 134 

Kollock  v.  City  of  Madison,  84  Wis.  458,  54  X.  W.  725 164,  426 

Kolsti  v.  Railway  Co.,  32  Minn.  133,  19  X.  W.  655 306,  307 

Kolzem  v.  Railroad  Co.  (Com.  PI.)  1  Misc.  Rep.  148,  20  X.  Y.  Supp.  700 174 

Koons  v.  Railroad  Co..  65  Mo.  592 69,  395 

Koosorowska  v.  Glasser  (Super.  Buff.)  8  X.  Y.  Supp.  197 413 

Korrady  v.  Railway  Co.,  131  Ind.  261,  29  X.  E.  1069 415,  417 

Krai  v.  Railway  Co.,  71  Minn.  422,  74  X.  W.  166 181 

Kramer  v.  Railroad  Co.,  25  Cal.  434 4.00,  403 

Kreger  v.  Bismarck  Tp.,  59  Minn.  3,  60  X.  W.  675 441 

Kreider  v.  Turnpike  Co.,  162  Pa.  St.  537.  29  Atl.  721 40 

Kreig  v.  Wells,  1  E.  D.  Smith  (X.  Y.)  74 66 

Kreis  v.  Railway  Co.,  131  Mo.  533,  33  S.  W.  64 , .  339 


532  CASES  CITED. 

Page 

Kremer  v.  Express  Co.,  6  Cold.  (Tenn.)  356 283 

Krenzer  v.  Railway  Co.,  151  Ind.  587,  52  N.  E.  220 52 

Krish  v.  Ford  (Ky.)  43  S.  W.  237 301 

Krueger  v.  Railway  Co.,  Ill  Ind.  51,  11  N.  E.  957 146 

68  Minn.  445,  71  N.  W.  683 183 

Kucera  v.  Lumber  Co.,  91  Wis.  637,  65  N.  W.  374 6S 

Kudik  v.  Railroad  Co.,  78  Hun.  492,  29  N.  Y.  Supp.  533 103 

Kuehn  v.  City  of  Milwaukee,  92  Wis.  263,  65  N.  W.  1030 443 

Kulm  v.  Railroad  Co.,  42  Iowa,  420 338,  347 

Kuhns  v.  Railway  Co.,  76  Iowa,  67,  40  N.  E.  92. 417 

Kuter  v.  Railroad  Co.,  1  Biss.  35,  Fed.  Gas.  No.  7,955 273 

Kyle  v.  Railroad  Co.,  10  Rich.  Law  (S.  C.)  382 294 

L 

Lack  v.  Seward,  4  Car.  &  P.  106 37 

Lackawanna  &  B.  R.  Co.  v.  Chenewith,  52  Pa.  St.  382 189 

Laclouch  v.  Towle,  3  Esp.  115 297 

Lacour  v.  Mayor,  etc.,  3  Duer  (N.  Y.)  406 433 

Lacy  v.  Kossuth  Co.,  106  Iowa,  16,  75  N.  W.  689 379 

Lafayette  &  I.  R.  Co.  v.  Adams,  26  Ind.  76 326 

v.  Shriner,  6  Ind.  141 343 

Laffrey  v.  Grummond,  74  Mich.  186,  41  N.  W.  894 275 

Lafitte  v.  Railroad  Co.,  43  La.  Ann.  34,  8  South.  701 173 

La  Flamrne  v.  Railway  Co.,  109  Mich.  509,  67  N.  W.  556 347 

Lago  v.  Walsh,  98  Wis.  348,  74  N.  W.  212 151 

Laicher  v.  Railroad  Co.,  28  La.  Ann.  320 37,  75 

Laidler  v.  Elliott,  3  Barn.  &  C.  738 372 

Laird  y.  McGeorge,  16  Misc.  Rep.  70,  37  N.  Y.  Supp.  631 315 

Lake  v.  Milliken,  62  Me.  240 18,  26 

Lake  Erie  &  W.  R.  Co.  v.  Acres,  108  Ind.  548,  9  N.  E.  453 191 

v.  Beam,  60  111.  App.  68 345 

v.  Fix,  88  Ind.  381 198 

v.  Gossard,  14  Ind.  App.  344,  42  N.  E.  818 358' 

v.  Hatch,  6  Ohio  Cir.  Ct.  R.  230 287 

52  Ohio  St.  408,  39  N.  E.  1042 287 

v.  Holderman,  56  111.  App.  144 358 

v.  Mackey,  53  Ohio  St.  370,  41  N.  E.  980 335 

v.  Maus  (Ind.  App.)  51  N.  E.  735 305 

v.  Middleton,  142  111.  550,  32  N.  E.  453 126 

v.  Mugg,  132  Ind.  168,  31  N.  E.  564 407 

V.  Norris,  60  111.  App.  112 342 

v.  Weisel,  55  Ohio  St.  155,  44  N.  E.  923 348 

Lake  Shore  &  M.  S.  Ry.  Co.  v.  Anthony,  12  Ind.  App.  126,  38  N.  E.  831.  .334,  337 

V.  Bennett,  89  Ind.  457 229,  235 

V.  Bodemer,  139  111.  596,  29  N.  E.  692 36 

v.  Boyts,  16  Ind.  App.  640,  45  X.  E.  812 31,  59 

V.  Elson,  15  111.  App.  80 328 

V.  Foster,  104  Ind.  293,  4  N.  E.  22 281 


CASES  CITED.  533 

Page 

Lake  Shore  &  M.  S.  Ry.  Co.  v.  Greenwood,  79  Pa.  St.  373 256 

v.  Hodapp,  83  Pa,  St.  22 232 

v.  Hunter,  13  Ohio  Cir.  Ct.  R.  441,  7  Ohio  Dec.  206 134 

v.  Knittal,  33  Ohio  St.  468 103,  109 

v.  Lamphere,  9  Ohio  dr.  Ct  R.  263 134 

v.  Lavalley,  38  Ohio  St.  221 102 

v.  McCormick,  74  Ind.  440 91,  92 

v.  Mclntosh,  140  Ind.  261,  38  X.  E.  476 25,  61 

v.  Miller,  25  Mich.  274 55,  57,  60,  75,  76,  82 

v.  Orndorff,  55  Ohio  St.  589,  45  X.  E.  447 184 

v.  Perkins,  25  Mich.  329 265 

v.  Rosenzweig,  113  Pa.  St.  519,  6  Atl.  545 199 

v.  Stupak,  123  Ind.  210,  229,  23  X.  E.  246 100 

v.  Sunderland,  2  111.  App.  307 409 

Lakeside  &  M.  R.  Co.  v.  Kelly,  10  Ohio  Cir.  Ct.  R.  322,  3  Ohio  Dec.  319 356 

Lake  Superior  Iron  Co.  v.  Erickson,  39  Mich.  492 129 

Lalor  v.  Railway  Co.,  52  111.  401 123 

Lamb  v.  Railway  Co.  (Mo.  Sup.)  48  S.  W.  659 328 

v.  Transportation  Co.,  46  X.  Y.  271 219,  294 

Lamphear  v.  Buckingham,  33  Conn.  237 '. 403,  416 

Lancaster  v.  Insurance  Co.,  92  Mo.  460,  5  S.  W.  23 165 

Lancaster  Ave.  Imp.  Co.  v.  Rhoads,  116  Pa.  St.  377,  9  Atl.  852 164,  165 

Landon  v.  Humphrey,  9  Conn.  209 376,  378 

Lane  v.  Atlantic  Works,  107  Mass.  104 26,  51,  338 

111  Mass.  136 11,  18,  45 

v.  City  of  Lewiston,  91  Me.  292.  39  Atl.  999 43-t,  436 

v.  Cotton,  12  Mod.  473 153 

v.  Cox  [1S97]  1  Q.  B.  451 316 

v.  Railroad  Co.,  69  Iowa,  443,  29  X.  W.  419 394 

31  Kan.  525,  3  Pac.  341 348 

132  Mo.  4.  33  S.  W.  645 77 

Lang  v.  Railroad  Co.,  80  Hun,  275,  30  X.  Y.  Supp.  137 174 

154  Pa.  St.  342,  26  Atl.  370 23,  222,  228 

v.  Transportation  Line  (Mich.)  77  X.  W.  633 116 

Langan  v.  Railway  Co.,  72  Mo.  392 42,  211 

Langstaff  v.  Stix,  64  Miss.  171,  1  South.  97 298 

Laning  v.  Railroad  Co.,  49  X.  Y.  521 94,  97,  120 

Lansing  v.  Smith,  8  Cow.  (X.  Y.)  146 320 

v.  Stone,  37  Barb.  (X.  Y.)  15 351 

Lapham  v.  Curtis,  5  Vt.  371 319 

Lapp  v.  Guttenkunst  (Ky.)  44  S.  W.  964 301 

Larich  v.  Moies,  18  R.  I.  513,  28  Atl.  661 105 

Larkin  v.  O'Neill,  119  X.  Y.  221,  23  X.  E.  563 49 

v.  Railroad  Co.,  166  Mass.  110,  44  X.  E.  122 43 

Larmore  v.  Iron  Co.,  101  X.  Y.  391,  4  X.  E.  752 48 

Larson  v.  Railroad  Co.,  71  Minn.  438,  74  X.  W.  166 104 

v.  Ring,  43  Minn.  88,  44  X.  W.  1078 104 

Larue  v.  Hotel  Co.,  116  Mass.  G7 313 

Lary  v.  Railroad  Co.,  78  Ind.  323 31 


534  CASES  CITED. 

Page- 
Last  Chance  Mining  &  Milling  Co.  v.  Ames,  23  Colo.  167,  47  Pac.  382 91 

Latorre  v.  Stamping  Co.,  9  App.  Div.  145,  41  N.  Y.  Supp.  99 107 

Laue  v.  City  of  Madison,  86  Wis.  453,  57  N.  W.  93 437 

LaughUn  v.  Railway  Co.,  28  Wis.  204 295,  296- 

Lauter  v.  Duckworth,  19  Ind.  App.  535,  48  N.  E.  864 93,  151 

Laverone  v.  Manglanti,  41  Cal.  140 361 

Lawall  v.  Groman,  180  Pa.  St.  532,  37  Atl.  98 372,  375- 

Lawrence  v.  Inhabitants,  5  Gray  (Mass.)  110 429 

V.  McGregor,  Wright  N.  P.  (Ohio)  193 224 

v.  Railroad  Co.,  29  Conn.  390 54 

15  Minn.  390  (Gil.  313) 291,  294 

v.  Shipman,  39  Conn.  586 161 

Lawson  v.  City  of  Seattle,  6  Wash.  184,  33  Pac.  347 443- 

v.  Conaway,  37  W.  Va.  159,  16  S.  E.  564 376,  377 

v.  Railway  Co.,  64  Wis.  447,  456,  24  X.  W.  618 188,  407 

v.  Truesdale,  60  Minn.  410,  62  N.  W.  546 109- 

Lay  y.  Railroad  Co.,  106  N.  C.  404,  11  S.  E.  412 51 

Learoyd  v.  Godfrey,  138  Mass.  315 304 

Leary  v.  Railroad  Co.,  139  Mass.  580,  587,  2  N.  E.  115 112,  123,  124 

Leavenworth,  L.  &  G.  R.  Co.  v.  Maris,  16  Kan.  333 287 

Leavitt  v.  Railroad  Co.,  89  Me.  509,  36  Atl.  998 1C1 

Le  Barren  v.  Ferry  Co.,  11  Allen  (Mass.)  312 216 

Lechowitzer  v.  Packet  Co.,  6  Misc.  Rep.  536,  27  N.  Y.  Supp.  140 258 

Le  Conteur  v.  Railroad  Co.,  L.  R.  1  Q.  B.  54 27ft 

Lee  v.  Gaslight  Co.,  98  N.  Y.  115 85 

v.  Railway  Co.,  66  Iowa,  131,  23  N.  W.  299 346 

Leeson  v.  Holt,  1  Starkie,  186 238 

Lefkowitz  v.  Railway  Co.  (Sup.)  56  N.  Y.  Supp.  215 323 

Leggott  v.  Railway  Co.,  1  Q.  B.  Div.  599,  45  Law  J.  Q.  B.  557,  35  Law  T. 

(N.   S.)   334 403 

Lehigh  Co.  v.  Hoffort,  116  Pa.  St.  119,  9  Atl.  177 449- 

Lehigh  Iron  Co.  v.  Rupp,  100  Pa.  St.  95 406,  410 

Lehman  v.  City  of  Brooklyn,  29  Barb.  (N.  Y.)  234 66,  415 

Leigh  v.  Railway  Co.,  36  Neb.  131,  54  X.  W.  134 100 

Leighton  v.  Sargent,  7  Fost.  (X.  H.)  460 376 

Lemke  v.  Railway  Co.,  39  Wis.  449 287 

Lemmon  v.  Railroad  Co.,  32  Iowa,  151 345 

Lemon  v.  Chanslor,  68  Mo.  340 216 

Lent  v.  Railroad  Co.,  120  X.  Y.  467,  24  X.  E.  653 178 

Leonard  v.  City  of  Harnellsville  (Sup.)  58  X.  Y.  Supp.  266 450' 

v.  Collins,  70  X.  Y.  90 95 

v.  Kinnare,  174  111.  532,  51  X.  E.  688 151 

v.  Whitcomb,  95  Wis.  646,  70  X.  W.  817 2(!6 

Lepnick  v.  Gaddis,  72  Miss.  200,  16  South.  213 304 

Le  Sage  v.  Railway  Co.,  1  Daly  (X.  Y.)  306 224 

Lesan  v.  Railroad  Co.,  77  Me.  85 325,  340 

Leslie  v.  City  of  Lewiston,  62  Me.  468 70 

v.  Pounds,  4  Taunt.  649 161,  312 

Lester  v.  Railroad  Co.,  73  Hun,  398,  26  X.  Y.  Supp.  206 298- 


CASES  CITED.  53-J 

Page 

Levering  v.  Insurance  Co.,  42  Mo.  88 253 

Levi  v.  Brooks,  121  Mass.  501 168 

Levinson  v.  Railway  Co.  (Tex.  Civ.  App.)  43  S.  W.  1032 199 

Levy  v.  Mayor,  etc.,  1  Sandf.  (X.  Y.)  4(J5 451 

Lewis  v.  Canal  Co.,  145  N.  Y.  508,  40  N.  E.  248 74 

v.  Car  Co.,  143  Mass.  267,  9  N.  E.  G15 217,  278 

v.  Dwinnell,  84  Me.  497,  24  Atl.  945 378 

v.  Ludwick.  G  Cold.  (Tenn.)  368 229 

v.  Railroad  Oo.,  93  Ga.  225,  18  S.  E.  C50 199 

5  Hurl.  &  N.  867 250,  251 

L.  R.  9  Q.  B.  66 180 

38  Md.  588 335 

(JO  N.  H.  187 324 

v.  Samuel,  8  Q.  B.  685 374 

v.  Seifert,  116  Pa.  St.  628,  11  Atl.  514 132,  139,  140 

v.  Smith,  107  Mass.  334 216 

Libby  v.  Ingalls,  124  Mass.  503 284 

Lichtenberger  v.  Incorporated  Town  of  Meriden,  100  Iowa.  221,  69  N.  W. 

424 434 

Light  v.  Railway  Co.,  93  Iowa,  83,  61  N.  W.  380 152 

Lillibridge  v.  McCann  (Mich.)  75  N.  W.  288 87,  350 

Lillis  v.  Railway  Co.,  64  Mo.  464 183,  185,  196 

Lilly  v.  Railroad  Co.,  32  S.  C.  142,  10  S.  E.  932 403,  417 

Limberger  v.  Westcott,  49  Barb.  (N.  Y.)  283 258 

Liming  v.  Railroad  Co.,  81  Iowa,  246,  47  N.  W.  66,  67.. 14,  19 

Lin  v.  Railroad,  10  Mo.  App.  125 296 

Linen  v.  Mfg.  Co.,  143  Mass.  206,  9  N.  E.  728 120 

Lincoln  v.  City  of  Boston,  148  Mass.  578,  580,  20  N.  E.  329 451 

v.  Walker,  18  Neb.  244,  20  N.  W.  113 84 

Lincoln  Rapid-Transit  Co.  v.  Nichols,  37  Neb.  332,  55  N.  W.  872 40,  41 

Lindeman  v.  Railroad  Co.,  42  Hun  (N.  Y.)  300 88,  334 

Lindholm  v.  City  of  St.  Paul,  19  Minn.  245  (Gil.  204) 449 

Lindley  v.  Railroad,  88  N.  C.  547 294 

Lindsay  v.  Railroad  Co.,  68  Vt.  556,  35  Atl.  513 51 

Lindsley  v.  Railway  Co.,  36  Minn.  539,  33  N.  W.  7 218,  262 

Lindvall  v.  Woods,  41  Minn.  212,  42  N.  W.  1020 133,  141 

Lineoski  v.  Coal  Oo.,  157  Pa.  St.  153,  27  Atl.  577 94 

Linfield  v.  Railroad  Co.,  10  Cush.  (Mass.)  562 330 

Link  v.  Railroad  Co.,  165  Pa.  St.  75,  30  Atl.  820 334,  337 

v.  Sheldon,  136  N.  Y.  1,  32  N.  E.  696 378 

Linnehan  v.  Sampson,  126  Mass.  506 41,  363 

Linton  Coal  &  Mining  Co.  v.  Persons,  11  Ind.  App.  264,  39  X.  E.  214 94. 

Liscomb  v.  Transportation  Co.,  6  Lans.  (N.  Y.)  75 '. 208 

Little  v.  Hackett,  116  U.  S.  366,  6  Sup.  Ct.  391 57,  59,  60 

v.  Railroad  Co.,  66  Me.  239 238 

88  Wi9.  402,  60  N.  W.  705 38.  52 

Littlejohn  v.  Railroad  Co.,  148  Mass.  478,  20  X.  E.  103 190,  209 

Little  Miami  R.  Co.  v.  Stevens,  20  Ohio,  415 133,  142 

v.  Washburn,  22  Ohio  St.  324 .  291 


536  CASES  CITED. 

Page 

Little  Miami  R.  Co.  v.  Wetmore,  19  Ohio  St.  110 170 

Little  Rock,  M.  R.  &  T.  R.  Co.  v.  Corcoran,  40  Ark.  375 219 

v.  Harper,  44  Ark.  208 219 

v.  Talbot,  39  Ark.  523 253 

47  Ark.  97,  14  S.  W.  471 238 

Little  Rock  Traction  &  Electric  Co.  v.  Walker  (Ark.)  45  S.  W.  57 158,  169 

Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker,  33  Ark.  350 406,  409,  410 

39  Ark.  491 414 

v.  Blewett  (Ark.)  45  S.  W.  548 330 

v.  Duffey,  35  Ark.  602 95 

v.  Lawton,  55  Ark.  428,  18  S.  W.  543 211 

v.  Pankhurst,  36  Ark.  371 78 

v.  Voss  (Ark.)  18  S.  W.  172 411 

Little  Rock  &  M.  R.  Co.  v.  Barry,  28  C.  C.  A.  644,  84  Fed.  944 102 

Livermore  v.  Railroad  Co.,  163  Mass.  132,  39  N.  E.  789 340 

Liverpool  &  G.  W.  Steam  Co.  v.  Insurance  Co.,  129  U.  S.  397,  9  Sup.  Ct.  469  239 

v.  Suitter,  17  Fed.  695 285 

Liverpool  &  L.  &  G.  Ins.  Co.  v.  McNeill,  32  C.  C.  A.  173,  89  Fed.  131 239 

Livingston  v.  Adams,  S  Cow.  (N.  Y.)  175 318,  319 

v.  Railroad  Co.,  5  Hun  (N.  Y.)  562 236 

Lloyd  v.  Business  College,  13  Ohio  Cir.  Ct.  R.  358,  7  Ohio  Dec.  318 167 

v.  Railway  Co.,  128  Mo.  595,  29  S.  W.  153,  31  S.  W.  110 338 

Locke  v.  Railroad  Co.,  15  Minn.  351  (Gil.  283) 342 

Lockhart  v.  Lichenthaler,  46  Pa.  St.  151,  159 25,  189 

Lockwood  v.  Railroad  Co.,  98  N.  Y.  523 411 

55  Wis.  50,  12  X.  W.  401 152 

Loeb  v.  Peters,  63  Ala.  243 / 298 

Loewer  v.  City  of  Sedalia,  77  Mo.  431 77 

Logan  v.  McCahan,  102  Iowa,  241,  71  N.  W.  252 388 

v.  Railroad  Co.,  116  N.  C.  940,  21  S.  E.  959 149 

11  Rob.  (La.)  24 274 

Logwood  v.  Railroad  Co.,  23  Fed.  318 195 

London  &  L.  Fire  Ins.  Co.  v.  Railroad  Co.,  68  Hun,  598,  23  N.  Y.  Supp.  231; 

144  N.  Y.  200,  39  N.  E.  79 279 

Long  v.  Moon,  107  Mo.  334 161 

v.  Morrison,  14  Ind.  595 401 

v.  Railroad  Co.,  147  Pa.  St.  343.  23  Ati.  459 227 

Longmore  v.  Railway,  19  0.  B.  (N.  S.)  183 209 

Loomis  v.  Railway  Co.,  17  Mo.  App.  340 293 

v.  Terry,  17  Wend.  (N.  Y.)  496 362,  364,  365 

Looney  v.  McLean,  129  Mass.  33 51 

Lopez  v.  Mining  Co.,  1  Ariz.  464,  2  Pac.  748 84 

Lord  v.  City  of  Mobile,  113  Ala.  360,  21  S.  E.  366 432,  433 

Lords  Bailiff-Jurats  of  Romney  Marsh  v.  Trinity  House,  L.  R.  5  Exch.  204    23 

Lorenzo  v.  Wirth,  170  Mass.  596,  49  N.  E.  1010 31 

Lorillard  v.  Town  of  Munroe,  11  N.  Y.  392,  396 451 

Los  Angeles  Cemetery  Ass'n  v.  City  of  Los  Angeles,  103  Cal.  461,  37  Pac. 

375 429 

Losee  v.  Buchanan,  51  N.  Y.  476 319 


CASES  CITED.  537 

» 
»  Page 

Loughlin  v.  State,  105  N.  Y.  159,  11  N.  E.  371 132,  133 

Louisville,  C.  &  L.  K.  Co.  v.  Case's  Adm'r,  9  Bush  (Ky.)  728 57 

v.  Cavens'  Adm'r,  9  Bush  (Ky.)  500 147 

v.  Goetz's  Adm'x,  79  Ky.  442 84,  86 

v.  Hedger,  9  Bush  (Ivy.)  645 238 

v.  Mahan,  S  Bush  (Ky.)  184 289 

v.  Mahony's  Adm'x,  7  Bush  (Ky.)  235 394,  413 

v.  Sullivan,  81  Ky.  624 78 

Louisville,  E.  &  St.  L.  Consol.  R.  Co.  v.  Utz,  133  Ind.  265,  268,  32  N.  E. 
881    103,  104 

Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Berkey,  136  Ind.  181,  35  N.  E.  3 104 

v.  Buck,  116  Ind.  566,  19  N.  E.  453 146 

v.  Cook,  12  Ind.  App.  109,  38  N.  E.  1104 179 

v.  Creek,  130  Ind.  139,  29  N.  E.  481 61 

v.  Frawley,  110  Ind.  18,  9  N.  E.  594 106,  119 

v.  Heck,  151  Ind.  292,  50  N.  E.  988 147 

v.  Isom,  10  Ind.  App.  691,  38  N.  E.  423 147 

v.  Keefer,  146  Ind.  21,  44  N.  E.  796 212 

v.  Lucas,  119  Ind.  583,  21  N.  E.  968 180 

v.  McCorkle,  12  Ind.  App.  691,  40  N.  E.  26 358 

v.  Nitsche,  126  Ind.  229,  26  X.  E.  51,  45  Am.  &  Eng.  R.  Gas.  532 13,  10 

v.  Rush,  127  Ind.  545,  20  X.  E.  1010 409 

v.  Sears,  11  Ind.  App.  654,  38  N.  E.  837 66,  70 

v.  Snyder,  117  Ind.  435,  20  N.  E.  284 29 

v.  Stephens,  13  Ind.  App.  145,  40  N.  E.  148 330,  337 

v.  Stommel,  126  Ind.  35,  25  N.  E.  863 55 

v.  Wolfe,  128  Ind.  347,  27  N.  E.  606 186 

v.  Wright,  18  Ind.  App.  125,  47  N.  E.  491 196 

Louisville,  N.  O.  &  T.  R.  Co.  v.  Bigger,  66  Miss.  319,  6  South.  234 234,  266 

v.  Mask,  04  Miss.  738,  2  South.  300 180 

v.  Patterson,  09  Miss.  421,  13  South.  097 193 

Louisville,  N.  &  G.  S.  R.  Co.  v.  Fleming,  14  Lea  (Tenn.)  128 80 

v.  Harris,  9  Lea  (Tenn.)  180 184,  199 

Louisville  Safety- Vault  &  Trust  Co.  v.  Louisville  &  N.  R.  Co.  (Ky.)  17  S.  W. 
567  36,  392 

Louisville  &  A.  R.  Co.  v.  Ballard,  2  Mete.  (Ky.)  77 344 

Louisville  &  N.  R.  Co.  v.  Bell  (Ky.)  38  S.  W.  8 191,  212 

v.  Bowen  (Ky.)  39  S.  W.  31 344 

v.  Brantley's  Adm'r,  96  Ky.  297,  28  S.  W.  447 125 

v.  Brice,  84  Ky.  298,  1  S.  W.  483 394 

v.  Brinckerhoff  (Ala.)  24  South.  892 343 

v.  Brooks'  Adm'x,  83  Ky.  129,  131 125,  418 

v.  Brown  (Ala.)  25  South.  609 405 

v.  Brownlee,  14  Bush  (Ky.)  590 238 

v.  Burke.  6  Cold.  45 398 

v.  Campbell,  7  Heisk.  (Tenn.)  253 293,  295 

v.  Chaffin,  84  Ga.  519,  11  S.  E.  891 402 

v.  Ciark's  Adm'r  (Ky.)  49  S.  W.  323 340 

v.  Collins,  2  Duv.  (Ky.)  114,  117 142,  147 


538  CASES  CITED. 

Page 

Louisville  &  N.  R.  Co.  v.  Com.,  99  Ky.  663,  37  S.  W.  79 1 195 

v.  Dalton  (Ky.)  43  S.  W.  431 35S 

v.  Donaldson  (Ky.)  43  S.  W.  439 172 

v.  Eakin's  Adm'r  (Ky.)  45  S.  W.  529 405 

v.  Ellis'  Adm'r,  97  Ky.  330,  30  S.  W.  979 185 

v.  Garrett,  8  Lea  (Tenn.)  438 184 

v.  Gidley  (Ala.)  24  South.  753 224 

v.  Gower,  85  Tenn.  465,  3  S.  W.  824 149 

v.  Guthrie,  10  Lea  (lenn.)  432 11,  19 

v.  Hailey,  94  Tenn.  383,  29  S.  W.  367 187 

v.  Hartwell,  99  Ky.  436,  36  S.  W.  183 284 

v.  Johnson,  108  Ala.  62,  19  South.  51 185 

27  C.  C.  A.  367,  81  Fed.  679 90 

v.  Jones,  83  Ala.  376,  3  South.  902 398 

100  Ala.  263,  14  South.  114 296 

v.  Keller  (Ky.)  47  S.  W.  1072 208- 

v.  Kelsey,  89  Ala.  287,  7  South.  648 17 

v.  Keinper,  147  Ind.  561,  47  N.  E.  214 11& 

v.  Kingman  (Ky.)  35  S.  W.  264 188,  189 

v.  Lahr,  86  Tenn.  335,  6  S.  W.  663 149 

v.  Levi,  8  Ohio  Dec.  373 248- 

v.  Ma'.one,  116  Ala.  600,  22  South.  897 359 

v.  Manchester  Mills,  88  Tenn.  653,  14  S.  W.  314 219 

v.  Meyer,  78  Ala.  597 295 

v.  Miller,  109  Ala.  500,  19  South.  989 355 

v.  Mitchell,  87  Ky.  327,  8  S.  W.  706 & 

v.  Oden,  80  Ala.  38 287 

v.  Orr,  91  Ala.  548,  8  South.  360 103 

26  South.  35  394 

v.  Pitt,  91  Tenn.  86,  18  S.  W.  118 403,  416- 

v.  Ricketts  (Ky.)  37  S.  W.  952 208- 

v.  Sanders,  86  Ky.  259,  5  S.  W.  563 420,  421 

v.  Semonis  (Ky.)  51  S.  W.  612 95 

v.  Stutts,  105  Ala.  368,  17  South.  29 152 

v.  Taafe's  Adm'r  (Ky.)  50  S.  W.  850 405 

v.  Tennessee  Brewing  Co.,  96  Tenn.  677,  36  S.  W.  392 296- 

v.  Touart,  97  Ala.  514,  11  South.  756 23& 

v.  Trammell,  93  Ala.  350,  9  South.  870 407 

v.  Turner,  100  Tenn.  213,  47  S.  W.  223 200 

v.  Vestal  (Ky.)  49  S.  W.  204 118 

v.  Wainscott,  3  Bush  (Ky.)  149 342 

v.  Ward's  Adm'r  (Ky.)  44  S.  W.  1112 407 

v.  Williams,  105  Ala.  379,  16  South.  795 348 

v.  Wynn,  88  Tenn.  320,  14  S.  W.  311 218,  249,  250 

Louisville  &  P.  Canal  Co.  v.  Murphy,  9  Bush  (Ky.)  522 62 

Louisville  &  St.  L.  Consol.  R.  Co.  v.  Gobin,  52  111.  App.  565 71 

Louth  v.  Thompson  (Del.  Super.)  39  Atl.  1100 84 

Love  v.  City  of  Atlanta,  95  Ga.  129,  22  S.  E.  29 44S 


CASES  CITED.  539 

Page 

Lovejoy  v.  Railroad  Co.,  125  Mass.  79 4. . . .  .  115,  116 

41  W.  Va.  693,  24  S.  E.  599 342 

Loveland  v.  Burke,  120  Mass.  139 232 

Levering  v.  Coal  Co.,  54  Pa.  St.  291 226 

Lovett  v.  Salem  &  S.  D.  R.  Co.,  9  Allen  (Mass.)  557 338 

Lovingston  v.  Bauchens,  34  111.  App.  544 158 

Lowe  v.  Railway  Co.,  89  Iowa,  420,  56  N.  W.  519 102,  106 

v.  Salt  Lake  City,  13  Utah,  91,  44  Pac.  1050 49,  50,  309 

Lowell  Wire-Fence  Co.  v.  Sargent,  8  Allen  (Mass.)  189 215,  294 

Lowery  v.  Ice  Co.,  26  Misc.  Rep.  163,  55  N.  Y.  Supp.  707 70 

v.  Railway  Co.,  99  N.  Y.  158,  1  N.  E.  608 14,  357 

Loyd  v.  City  of  Columbus,  90  Ga.  20,  15  S.  E.  818 ' 441,  444 

Lucas  v.  Railroad  Co.,  21  Barb.  (X.  Y.)  245 403 

6  Gray  (Mass.)  64 211 

33  Wis.  41 187 

Luce  v.  Railway  Co.,  67  Iowa,  75,  24  N.  W.  600 147 

Lucey  v.  Oil  Co.,  129  Mo.  32,  31  S.  W.  340 Ill 

Luck  v.  Zapp,  1  Tex.  Civ.  App.  528,  21  S.  W.  418 383 

Luebke  v.  Machine  Works,  88  Wis.  442,  60  N.  W.  711 119 

Lufkin  v.  Zane,  157  Mass.  117,  31  N.  E.  757 315 

Lumley  v.  Mfg.  Co.,  20  C.  C.  A.  1,  73  Fed.  767 303 

Lundberg  v.  Shevlin-Carpenter  Co.,  68  Minn.  135,  70  N.  W.  1078 141 

Lundy  v.  Railroad  Co.,  66  Cal.  191,  4  Pac.  1193 200 

Luse  v.  Railway  Co.,  57  Kan.  361,  46  Pac.  768 181 

Lustig  v.  Railroad  Co.,  65  Hun,  547,  20  N.  Y.  Supp.  477 411,  417 

Luxf ord  v.  Large,  5  Car.  &  P.  421 37 

Lyberg  v.  Railroad  Co.,  39  Minn.  15,  38  N.  W.  632 120 

Lygs  v.  Newbold,  9  Exch.  302 68 

Lynch  v.  Allyn,  160  Mass.  248,  35  N.  E.  550 105 

v.  Com.,  16  Serg.  &  R.  (Pa.)  368;    6  Watts,  495 373,  384 

v.  Davis,  12  How.  Prac.  (N.  Y.)  323 378,  401 

v.  Mayor,  etc.,  76  X.  Y.  61. 429 

v.  Nurdin,  1  Q.  B.  29 25,  27,  68,     70 

v.  Railroad  Co.,  8  App.  Div.  458,  40  N.  Y.  Supp.  775 206 

16  C.  C.  A.  151,  69  Fed.  86 337 

112  Mo.  420,  20  S.  W.  642 73 

90  N.  Y.  77 173 

v.  Smith,  104  Mass.  52 G5,  68,  70,  72 

v.  Swan,  167  Mass.  510,  46  N.  E.  51 317 

Lynn  v.  Southern  Pac.  Co.,  103  Cal.  7,  36  Pac.  1018 205 

Lynx,  The,  v.  King,  12  Mo.  272 222 

Lyons  v.  City  of  Red  Wing  (Minn.)  78  N.  W.  868 437 

v.  Merrick,  105  Mass.  71 362 

V.  Railroad  Co.,  57  N.  Y.  489 39,  54 

M 

McAlister  v.  Railroad  Co.,  74  Mo.  351 233 

McAllaster  v.  Bailey,  127  N.  Y.  583,  28  N.  E.  591 382 


•540  CASES  CITED. 

Page^ 

MoAndrew  v.  Whitlock,  52  N.  Y.  40 2S6 

McAndrews  v.  Burns,  39  N.  J.  Law,  117 1-18 

McArthur  v.  Sears,  21  Wend.  (N.  Y.)  190 226 

JMcBeath  v.  Railway  Co.,  20  Mo.  App.  445 232 

McBride  v.  Railway  Co.,  3  Wyo.  247,  21  Pac.  687 151 

McCafferty  v.  Railroad  Co.,  61  N.  Y.  178 166,  178 

McCahill  v.  Kipp,  2  E.  D.  Smith  (N.  Y.)  413,  590 19,  25 

McCalla  v.  Multnomah  Co.,  3  Or.  424 456 

McCandless  v.  McWha,  22  Pa.  St.  261 376 

25  Pa.  St.  95 379 

v.  Railroad   Co.,  45  Wis.   365 343 

McCann  v.  City  of  Waltham,  163  Mass.  344,  40  N.  E.  20 443 

v.  Pennsylvania  Co.,  10  Ohio  Cir.  Ct.  R.  139,  3  Ohio  Dec.  444 134 

v.  Railway  Co.,  96  Wis.  664,  71  N.  W.  1054 348 

McCarthy  v.  Muir,  50  111.  App.  510 90 

v.  Mulgrew  (Iowa)  77  N.  W.  527 105 

v.  Portland,  67  Me.  167 436 

v.  Railway  Co.,  92  Mo.  536,  4  S.  W.  516 66 

9  Mo.  App.  159 293 

v.  Shipowners'  Co.,  L.  R.  Ir.  10  Exch.  384 98 

McCarty  v.  Railroad  Co.,  30  Pa.  St.  247 288 

v.  Wells,  51  Hun,  171,  4  N.  Y.  Supp.  672 400 

McCaskill  v.  Elliot,  5  Strob.  (S.  C.)  196 364 

McCauley  v.  Casualty  Co.,  16  Misc.  Rep.  574,  38  N.  Y.  Supp.  773 156 

v.  Hutkoff,  20  Misc.  Rep.  97,  45  N.  Y.  Supp.  85 1G8 

v.  Railway  Co.,  10  App.  D.  C.  560 90 

McClallen  v.  Adams,  19  Pick.  (Mass.)  333 377 

McClarney  v.  Railway  Co.,  80  Wis.  277,  49  N.  W.  903 151 

McClary  v.  Railroad  Co.,  3  Neb.  44 11,  19,     24 

McClellan  v.  Railway  Co..  58  Minn.  104,  59  N.  W.  978 20,  25 

McClelland  v.  Railway  Co.,  94  Ind.  276 78 

McClung  v.  Dearborne,  134  Pa.  St.  396,  19  Atl.  698 169 

McClure  v.  Railroad  Co.,  34  Md.  532 179,  184,  185,  198 

McConnell  v.  Lloyd,  9  Pa.  Super.  Ct.  25,  43  Wkly.  Notes  Gas.  245 364 

v.  Railroad  Co.,  86  Va.  248,  9  S.  E.  1006 294 

McCook  v.  Northup  (Ark.)  45  S.  W.  547 185,  193 

McCormack  v.  Railroad  Co.,  18  App.  Div.  333,  46  N.  Y.  Supp.  230 56 

McCormick  v.  Railroad  Co.,  4  E.  D.  Smith  (N.  Y.)  181 270 

McCoun  v.  Railroad  Co.,  66  Barb.  (N.  Y.)  338 157 

McCoy  v.  Railroad  Co.,  44  Iowa,  424 262 

v.  Town  of  Westboro  (Mass.)  52  X.  E.  1064 138 

v.  Transportation  Co.,  42  Md.  498 238 

McCracken  v.  Smathers,  122  N.  C.  799,  29  S.  E.  354 377 

McCray  v.  Town  of  Fairmont  (W.  Va.)  33  S.  E.  245 438 

McCready  v.  Railroad  Co.,  2  Strob.  (S.  C.)  356 357 

McCrowell  v.  Mayor,  etc.,  5  Lea  (Teun.)  685 450 

McCue  v.  Klein.  60  Tex.  168 399 

McCullom  v.  Black  Hawk  Co.,  21  Iowa.  409 456 

McCullough  v.  Railway  Co.,  34  Mo.  App.  23 279 


CASES  CITED.  541 

Page 

McCully  v.  Clarke,  40  Pa.  St.  399 349- 

McCurrle  v.  Pacific  Co.,  122  Cal.  558,  55  Pac.  324 205 

McCutchen  v.  Homer,  43  Mich.  483,  5  N.  W.  668 450- 

McDade  v.  City  of  Chester,  117  Pa.  St.  414,  12  Atl.  421 449,  450 

McDaniel  v.  Railroad  Co.,  24  Iowa,  412 253,  266 

McDerruott  v.  Railway  Co.  (Iowa)  47  N.  W.  1037 418- 

McDonald  v.  City  of  Red  Wing,  13  Minn.  38  (Gil.  25) 452 

v.  Franchere,  102  Iowa,  496,  71  X.  W.  427 158,  169 

v.  Railroad  Co.,  26  Iowa,  124 178- 

v.  Railroad  Corp.,  34  X.  Y.  497 287 

v.  Savoy,  110  Mass.  49 100- 

v.  Snelling,  14  Allen  (Mass.)  290 11 

McDonald's  Adm'r  v.  Railroad  Co.,  95  Va.  98,  27  S.  E.  821 150 

MacDonell  v.  Buffum,  31  How.  Prac.  154 86 

McDonnell  v.  Railroad  Co.,  35  App.  Div.  147,  54  X.  Y.  Supp.  747 207 

McDonough  v.  Gilman,  3  Allen  (Mass.)  264 313- 

v.  Mayor,  etc.,  6  Xev.  90 450 

v.  Railway  Co.,  15  Wash.  244,  46  Pac.  334 150 

v.  Roat,  8  Kulp  (Pa.)  433 369- 

MacDougall  v.  Railroad  Co.,  63  Cal.  431 84 

McDuffee  v.  Railroad  Co.,  52  X.  H.  430 200 

McDugan  v.  Railroad  Co.  (Com.  PI.)  10  Misc.  Rep.  336,  31  X.  Y.  Supp.  135. .  109- 

McElligott  v.  Randolph,  61  Conn.  157,  22  Atl.  1094 146- 

McElroy  v.  Railroad  Corp.,  4  Gush.  (Mass.)  400 54 

McEwen  v.  Springfield,  64  Ga.  159 418 

McFadden  v.  Railway  Co.,  87  Cal.  464,  25  Pac.  681 61 

92  Mo.  343,  4  S.  W.  689 239,  250,  262' 

McFarlan  Carriage  Co.  v.  Potter  (Ind.  Sup.)  52  X.  E.  209 120- 

53  X.  E.  (Ind.  Sup.)  465 95,  9$ 

McFarlane  v.  Town  of  Sullivan,  99  Wis.  361,  74  X.  W.  559 21 

McFetridge  v.  Piper,  40  Iowa,  627 297,  298 

McGarry  v.  Loomis,  63  N.  Y.  104 66,  70,  72" 

McGary  v.  City  of  Lafayette,  12  Rob.  (La.)  668,  4  La.  Ann.  440 445 

McGeary  v.  Railroad  Co.  (R.  I.)  41  Atl.  1007 89 

McGhee  v.  Gaines,  98  Ky.  182,  32  S.  W.  602 342 

v.  Guyn  (Ky.)  32  S.  W.  615 34& 

v.  Reynolds  (Ala.)  23  South.  68 183,  196 

McGill  v.  Rowand,  3  Pa.  St.  451 270- 

McGinnis  v.  Bridge  Co.,  49  Mich.  466.  13  X.  W.  819 92,  123 

McGonigle  v.  Canty,  80  Hun,  301,  30  X.  Y.  Supp.  320 93 

McGovern  v.  Mfg.  Co.,  80  Ga.  227,  5  S.  E.  492 146 

v.  Oil  Co.,  11  App.  Div.  588,  42  X.  Y.  Supp.  595 50 

v.  Railroad  Co.,  67  X.  Y.  417 67,  336,  409 

McGowan  v.  City  of  Boston,  170  Mass.  384,  49  X.  E.  633 434 

v.  Smelting  Co.,  3  McCrary,  393,  9  Fed.  861 118 

McGown  v.  Railroad  Co.,  85  Tex.  289,  20  S.  W.  80 415- 

McGrath  v.  Railroad  Co.,  59  X.  Y.  468 39 

McGraw  v.  Railroad  Co..  18  W.  Va.  361 225,  235 

McGregor  v.  Brown,  5  Pick.  (Mass.)  170 382; 


542  CASES  CITED. 

Page 

McGregor  v.  Kilgore,  6  Ohio,  358 210 

McGrew  v.  Stone,  53  Pa.  St.  436 10.  30 

McGuerty  v.  Hale,  161  Mass.  51,  36  N.  E.  682 109 

McGuire  v.  Railroad  Co.,  46  La.  Ann.  1543,  16  South.  457 52 

v.  Spence,  91  N.  Y.  303 313 

McGuirk  v.  Shattuck,  160  Mass.  45,  35  N.  E.  110 93,  109 

McHenry  v.  Railroad  Co.,  4  Har.  (Del.)  448 210 

McHugh  v.  City  of  St.  Paul,  67  Minn.  441,  70  N.  W.  5 435 

v.  Chicago  &  N.  W.  Ry.  Co.,  41  Wis.  78 353 

Mclntosh  v.  Railway  Co.,  58  Mo.  App.  281 Ill 

Mclntyre  v.  Railroad  Co.,  163  Mass.  189,  39  X.  E.  1012 90 

37  N.  Y.  287 414 

McKay  v.  Dredging  Co.,  92  Me.  454,  43  Atl.  29 414 

v.  Railway  Co.,  35  N.  Y.  75 326,  334 

34  W.  Va.  65,  11  S.  E.  737 % 198- 

McKean  v.  Railroad  Co.,  55  Iowa,  192,  7  X.  W.  505 38 

McKee  v.  Bidwell,  74  Pa.  St.  218 82,  436 

v.  Nelson,  4  Cow.  (X.  Y.)  355 79 

McKeigue  v.  City  of  Janesville,  68  Wis.  50.  31  X.  W.  298 413.  422 

McKenna  v.  Baessler,  86  Iowa,  197,  53  X.  W.  103 19 

v.  Bedstead  Co.,  12  Misc.  Rep.  485,  33  X.  Y.  Supp.  684 63 

v.  Paper  Co.,  176  Pa.  St.  306,  35  Atl.  131 93 

McKeon  v.  Railway  Co.,  20  App.  Div.  601,  47  X.  Y.  Supp.  374 52 

Mackey  v.  City  of  Vicksburg,  64  Miss.  777,  2  South.  178 67 

Mackin  v.  Railroad  Co.,  135  Mass.  201 96 

McKinley  v.  Railroad  Co.,  44  Iowa,  314 170 

McKinney  v.  Jewett,  90  X.  Y.  267 287 

v.  Xeil,  1  McLean,  540,  Fed.  Gas.  Xo.  8.835 204 

Macklin  v.  Steamboat  Co.,  7  Abb.  Prac.  X.  S.  (X.  Y.)  229 275,  277 

McKnight  v.  Construction  Co.,  43  Iowa,  406 147 

McKone  v.  Railroad  Co.,  51  Mich.  601,  17  X.  W.  74 211 

McKune  v.  Railroad  Co.,  66  Cal.  302,  5  Pac.  482 146 

McLarin  v.  Railroad  Co.,  85  Ga.  504,  11  S.  E.  840 211 

McLaughlin  v.  City  of  Corry,  77  Pa.  St.  109 434 

McLean  v.  Burbank,  12  Minn.  530  (Gil.  438) 393 

v.  Mining  Co.,  51  Cal.  255 133,  146 

McLendon  v.  State,  92  Tenn.  520,  22  S.  W.  200 382 

McMabon  v.  City  of  Xew  York,  33  X.  Y.  642 404 

v.  Davidson.  12  Minn.  357  (Gil.  232) 7,  18,  25,  57 

v.  Mining  Co.,  101  Wis.  102,  76  X.  W.  1098 151 

v.  Railroad  Co.,  39  Md.  439 70,  71 

McMasters  v.  Railroad  Co.,  69  Pa.  St.  374 286 

McMillan  v.  Railroad  Co.,  46  Iowa,  231 67 

16  Mich.  79,  110,  111 252,  254,  257,  259.  294 

172  Pa.  St.  523,  33  Atl.  560 184,  196 

McMnllen  v.  Railway  Co.,  1  Mo.  App.  Rep'r,  230 98 

McXamara  v.  Beck  (Ind.  App.)  52  X.  E.  707 70 

v.  Railroad  Co.,  136  X.  Y.  650.  32  X.  E.  675 335 

V.  Milage  of  Clintonville,  62  Wis.  207,  22  X.  W.  472 30 


CASES  CITED.  543 

Page 

McXamee  v.  Hunt,  30  C.  C.  A.  653,  87  Fed.  298 101 

McNeil  v.  Ice  Co.  (Mass.)  54  X.  E.  257 64 

McXevins  v.  Lowe,  40  111.  209 376 

McXown  v.  Railroad  Co.,  55  Mo.  App.  585 331 

McXulta  v.  Ensch,  134  111.  46,  24  N.  E.  631 180 

McXutt  v.  Livingston,  7  Smedes  &  M.  (Miss.)  641 388 

Macon  &  I.  S.  St.  Ry.  Co.  v.  Holmes,  103  Ga.  655,  30  S.  E.  563 42 

Macon  &  W.  R.  Co.  v.  Davis,  27  Ga.  113 79 

McPhee  v.  Scully,  163  Mass.  216,  39  N.  E.  1007 97,  138 

McPherson  v.  City  of  Buffalo,  13  App.  Div.  502,  43  N.  Y.  Supp.  658 434 

JMrllae  v.  Railroad  Co.,  88  X.  C.  526 199 

Mc-Rickard  v.  Flint,  114  X.  Y.  222,  21  X.  E.  153. 48 

Macrow  v.  Railway  Co.,  L.  R.  6  Q.  B.  612 216,  269,  271 

McTavish  v.  Railway  Co.  (N.  D.)  79  N.  W.  443 358 

McVee  v.  City  of  Watertown,  92  Hun,  306,  36  N.  Y.  Supp.  870 64 

McVeety  v.  Railway  Co.,  45  Minn.  268,  47  X.  W.  809 196 

McVoy  v.  Oakes,  91  Wis.  214,  64  X.  W.  748 65 

Macy  v.  Railroad  Co.,  35  Minn.  200,  28  X.  W.  249 141 

Madan  v.  Sherard,  73  X.  Y.  329 259 

Madden  v.  Railway  Co.,  28  W.  Ya.  610 150,  403 

Madden's  Adm'r  v.  Railroad  Co.,  28  W.  Va.  610 150 

Madison  &  I.  R.  Co.  v.  Taffe,  37  Ind.  361,  364 323 

Magiltou  v.  Railroad  Co.,  82  Hun,  308,  31  N.  Y.  Supp.  241 342 

Maginnis  v.  Railroad  Co.,  52  N.  Y.  215 326 

Magner  v.  Baptist  Church,  174  Pa.  St.  84,  34  Atl.  456 49 

Magnin  v.  Diusmore,  56  X.  Y.  168 253,  258 

62  X.  Y.  35 230,  248,  260 

70  X.  Y.  410 245,  247 

Magoon  v.  Railroad  Co.,  67  Yt.  177,  31  Atl.  156 335 

Maguire  v.  Railroad  Co.,  115  Mass.  239 100 

146  Mass.  379,  15  N.  E.  904 418 

Mahar  v.  Railway  Co..  19  Hun  (X.  Y.)  32 335 

Mahon  v.  Burns,  13  Misc.  Rep.  19,  34  X.  Y.  Supp.  91 44 

Mahoney  v.  Dankward  (Iowa)  79  N.  W.  134 166 

v.  Dore,  155  Mass.  513,  30  N.  E.  366 114,  124 

v.  Libbey,  123  Mass.  20 306 

Maignan  v.  Railroad  Co.,  24  La.  Ann.  333 287 

Majestic,  The,  9  C.  C.  A.  161,  60  Fed.  624 261 

166  U.  S.  375,  17  Sup.  Ct.  597 219 

Maleverer  v.  Spinke,  1  Dyer,  36 9,  452 

Mali  v.  Lord,  39  X.  Y.  381 109,  171,  173 

Mallach  v.  Ridley  (Sup.)  9  X.  Y.  Supp.  922 171 

Mallory  v.  Railroad  Co.,  39  Barb.  (X.  Y.)  488 217 

Malmsten  v.  Railroad  Co.,  49  Mich.  94,  13  X.  W.  373 57 

Malone  v.  Gerth,  100  Wis.  166,  75  X.  W.  972 372 

v.  Railway  Co.,  65  Iowa,  417,  21  X.  W.  756 147 

Maloy  v.  Railway  Co.,  84  Mo.  270 44 

Manchester,  S.  &  L.  R.  Co.  v.  tVallis,  14  C.  B.  213 341 

Maucuso  v.  Kansas  City,  74  Mo.  App.  138 313 


544  .       CASES  CITED. 

Page 

Manderschild  v.  City  of  Dubuque,  25  Iowa,  108 437 

Mangam  v.  Railroad  Co.,  36  Barb.  230 36 

38  N.  Y.  455 64,  66 

Mangan  v.  Atterton,  L.  R.  1  Exch.  239 70 

v.  Foley,  33  Mo.  App.  250 156 

Manhattan  Rubber  Shoe  Co.  v.  Railroad  Co.,  9  App.  Div.  172,  41  N.  Y. 

Supp.  83 283 

Mauley  v.  Canal  Co.,  69  Vt.  101,  37  Atl.  279 330 

v.  Railroad  Co.  18  App.  Div.  420,  45  N.  Y.  Supp.  1108 335 

Manly  v.  Railroad  Co.,  74  N.  C.  655 67,  78 

Mann  v.  Birchard,  40  Vt.  326 239 

v.  Canal  Co.,  91  N.  Y.  495 97 

v.  Print  Works.  11  R.  I.  152 123 

v.  Weiand,  81  Pa.  St.  243 418 

Manning  v.  Railway  Co.,  166  Mass.  230,  44  N.  E.  135 40 

105  Mich.  260,  63  N.  W.  312 Ill 

Manross  v.  City  of  Oil  City,  178  Pa.  St.  276,  35  Atl.  959 434 

Mansfield  Coal  &  Coke  Co.  v.  McEnery,  91  Pa.  St.  185 140 

Maples  v.  Railroad  Co.,  38  Conn.  557 201 

Marble  v.  City  of  Worcester,  4  Gray  (Mass.)  395 18 

v.  Ross,  124  Mass.  44 365 

March  v.  Walker,  48  Tex.  372,  375 393,  405 

Marean  v.  Railroad  Co.,  167  Pa.  St.  220,  31  Atl.  562 112 

Mariani  v.  Dougherty,  46  Cal.  26 414 

Marietta  &  C.  R.  Co.  v.  Stephenson,  24  Ohio  St.  48 343 

Marion  v.  Railroad  Co.,  59  Iowa,  428,  13  N.  W.  415 169 

Mark  v.  Bridge  Co.,  103  M.  Y.  28,  8  N.  E.  243 39 

v.  Railway  Co.,  32  Minn.  208,  20  N.  W.  131 211 

Markey  v.  Queens  Co.,  154  N.  Y.  675,  49  N.  E.  71,  39  Lawy.  Rep.  Ann.  46. .  454 

Marley  v.  Wheelwright,  172  Mass.  530,  52  N.  E.  1066 317 

Marquette  v.  Railroad  Co.,  33  Iowa,  562 195 

Marsh  v.  Checkering,  101  N.  Y.  396,  399,  5  N.  E.  56 92,  121 

v.  Jones,  21  Vt.  378 362,  363 

v.  Whitmore,  21  Wall.  178 373 

Marshall  v.  Express  Co.,  7  Wis.  1 283 

v.  Heard,  59  Tex.  266 , 314,  317 

v.  Railroad  Co.,  45  Barb.  (N.  Y.)  502 233 

11  C.  B.  655,  665 220,  221 

Marsland  v.  Murray,  148  Mass.  91,  18  N.  E.  680 71 

Martin  v.  Courtney  (Minn.)  77  N.  W.  813 377 

v.  Iron  Works,  31  Minn.  407,  18  N.  W.  109 19,  20,  26 

V.  Railroad  Co.,  16  0.  B.  179 35,  208 

(Del.  Super.)  42  Atl.  442 340 

65   Fed.    384 145 

L.  R.  3  Exch.  9 '. 189 

176  Pa.  St.  444,  35  Atl.  183 330 

51  S.  C.  150,  28  S.  E.  303 '• 86 

v.  Temperley,  4  Q.  B.  298 159 

v.  Wallace,  40  Ga.  52 .  393 


CASES  CITED.  545 

Page 

Marvin  v.  Railway  Co.,  79  Wis.  140,  47  N.  W.  1123 20 

v.  Transfer  Co.,  49  Fed.  436 401 

Marx  v.  Steamship  Co.,  22  Fed.  680 233 

Mascheck  v.  Railroad  Co.,  3  Mo.  App.  600 66 

Mascotte,  The,  2  C.  C.  A.  400,  51  Fed.  606 2S5 

Maslin  v.  Railway  Co.,  14  W.  Va.  180 212,  239 

Mason  v.  Keeling,  12  Mod.  332,  1  Ld.  Raym.  606 309 

v.  Railroad  Co.,  Ill  N.  C.  4S2,  16  S.  E.  698 148 

Massoth  v.  Canal  Co.,  64  N.  Y.  524 88,  331 

Mast  v.  Kern  (Or.)  54  Pac.  950 149 

Masterson  v.  Railroad  Co.,  84  N.  Y.  247 59 

Matchett  v.  Railway  Co.,  132  Ind.  334,  31  N.  E.  792 112 

Mather  v.  Rillston,  156  U.  S.  391,  15  Sup.  Ct.  464 106 

Matteson  v.  Railroad  Co.,  62  Barb.  (N.  Y.)  364 91 

Mattey  v.  Machine  Co.,  140  Mass.  337,  4  N.  E.  575 71 

Matthei  v.  Wooley,  69  111.  App.  654 378 

Matthews  v.  Bull   (Cal.)  47  Pac.  773 85 

v.  De  Groff,  13  App.  Div.  356,  43  N.  Y.  Supp.  237 313 

v.  Warner's  Adm'r,  29  Grat  (Va.)  570 403 

Mattimore  v.  City  of  Erie,  144  Pa.  St.  14,  22  Atl.  817 37,  39 

Mattise  v.  Mfg.  Co.,  46  La.  Ann.  1535,  16  South.  400 148,  164 

Mattison  v.  Railroad  Co.,  57  N.  Y.  552 289 

Matz  v.  Railroad  Co.,  85  Fed.  180 398 

Matze  v.  Railroad  Co.,  1  Hun  (N.  Y.)  417 327 

Mauran  v.  Insurance  Co.,  6  Wall.  1 229 

Mauri tz  v.  Railroad  Co.,  23  Fed.  765,  21  Am.  &  Eng.  R.  Cas.  286,  292.  .258,  269 

Maying  v.  Todd,  1  Starkie,  72 .' .  238 

Maxmilian  v.  City  of  New  York,  62  N.  Y.  160 449,  453 

Maxwell  v.  Pike,  2  Me.  8 388 

v.  Railroad  Co.,  48  La.  Ann.  385,  19  South.  287 223 

1  Marv.  199,  40  Atl.  945 37,  52,  85,  407 

May  v.  Burdett,  9  Q.  B.  101 361 

v.  Inhabitants,  11  Mete.  (Mass.)  442 85 

v.  Railroad  Co.  (N.  J.  Sup.)  42  Atl.  163 408 

Mayes  v.  Railroad  Co.,  71  Mo.  App.  140 330 

Mayuard  v.  Railroad  Co.,  115  Mass.  458 341,  343 

Mayor,  etc.,  of  Americus  v.  Eldridge,  64  Ga.  524 429 

Mayor,  etc.,  of  City  of  Albany  v.  Cunliff,  2  X.  Y.  165 444,  445 

Mayor,  etc.,  of  City  of  Baltimore  v.  Holmes,  39  Md.  243 86 

v.  Marriott  9  Md.  160 456 

v.  O'Donnell,  53  Md.  110 447 

v.  Pendleton,  15  Md.  12 25 

Mayor,  etc..  of  City  of  New  York  v.  Bailey,  2  Denio  (N.  Y.)  433 431 

v.  Pentz,  24  Wend.  (N.  Y.)  668 452 

v.  Sheffield,  4  Wall.  189 ! 438 

Mayor,  etc.,  of  City  of  Rome  v.  Dodd,  58  Ga.  238 79 

Mayor,  etc.,  of  City  of  Savannah  v.  Waldner,  49  Ga.  316 447 

Mead  v.  Stratton,  87  N.  Y.  493 400 

Meade  v  Railway  Co.,  QS  Mo.  App.  92 19 

.— 35 


546  CASES  CITED. 

Page 

Mears  v.  Com'rs,  31  N.  C.  73 423 

Mechanics'  Bank  v.  Bank,  6  Mete.  (Mass.)  13 387 

Medary  v.  Gathers,  161  Pa.  St.  87,  28  Atl.  1012 312 

Meddaugh  v.  Railway  Co.,  80  Hun,  620,  33  N.  Y.  Supp.  7tK5  337 

Meehan  v.  Mfg.  Co.  (Mass.)  52  N.  E.  518 138 

Meeks  v.  Railroad  Co.,  52  Cal.  602 67,  70 

Meenagh  v.  Buckmaster,  26  App.  Div.  4.51,  50  N.  Y.  Supp.  85 59 

Meibus  v.  Dodge,  38  Wis.  300 67 

Meier  v.  Railroad  Co.,  64  Pa.  St.  225 29 

Mellen  v.  Morrill,  126  Mass.  545 314,  317 

Mellor  v.  Railway  Co.,  105  Mo.  455,  16  S.  W.  849 189 

Meloche  v.  Railway  Co.  (Mich.)  74  N.  W.  301 280 

Memphis  &  C.  R.  Co.  v.  Benson,  85  Tenn.  627,  4  S.  W.  5 193,  195 

v.  Hembree,  84  Ala.  182,  4  South.  392 36 

v.  Jones,  2  Head    (Tenn.)  517 78 

v.  Reeves,  10  Wall.  176 24,   219,   22.1 

v.  Whitfield,  44  Miss.  466 208 

Memphis  &  L.  R.  Ry.  Co.  v.  Stringfellow,  44  Ark.  322 180 

Menominee  River  Sash  &  Door  Co.  v.  Railroad  Co.,  91  Wis.  447,  65  N.  W. 

176   354,  357,  358 

Menzell  v.  Railroad  Co.,  1  Dill.  531,  Fed.  Cas.  No.  9,429 253 

Mercantile  Mut.  Ins.  Co.  v.  Chase,  1  E.  D.  Smith  (N.  Y.)  115 292 

Merchants'  Dispatch  Transp.  Co.  v.  Bloch,  86  Tenn.  392,  6  S.  W.  881.  .215,  239 

v.  Furthmann,  149  111.  66,  36  N.  E.  624;    47  111.  App.  561 255,  256 

V.  Hallock,  64  111.  284 282,  288 

v.  Kahn,  76  111.  520 224 

v.  Leysor,  89  111.  43 25H 

Merchants'  Dispatch  &  Transportation  Co.  v.  Cornforth,  3  Colo.  280,  281. . 

212,  222,  223,  238 

Mergenthaler  v.  Kirby,  79  Md.  182,  28  Atl.  1065 49 

Merkle  v.  Bennington  Tp.,  58  Mich.  156,  24  N.  W.  776 399 

Merriam  v.  Railroad  Co.  20  Conn.  354 279-281 

Merrifield  v.  City  of  Worcester,  110  Mass.  216 430,  431 

Merrill,  In  re,  54  Vt.  200 129,  189,  211 

v.  Grinnell,  30  N.  Y.  594 267,  270 

v.  Railroad  Co.,  139  Mass.  238,  1  X.  E.  548 177 

Merritt  v.  Earle,  29  N.  Y.  115 218,  226,  228 

v.  Hepenstal,  25  Can.  Sup.  Ct.  150 65 

Merryman  v.  Railway  Co.,  85  Iowa,  634,  52  N.  Wr.  545 69 

Mersey  Docks  &  Harbour  Board  v.  Gibbs,  L.  R.  1  H.  L.  93,  11  H.  L.  Cas. 

686 442,    455 

v.  Penhallow,  L.  R.  1  H.  L.  93 426 

Mershon  v.  Hobensack,  22  N.  J.  Law,  372 192,  227 

Mertz  v.  Detweiler,  8  Watts  &  S.  (Pa.)  376 379 

Merwin  v.  Butler,  17  Conn.  138 283,  286 

Mesic  v.  Railroad  Co.,  120  N.  C.  489,  26  S.  E.  633 332 

Messenger  v.  Dennie,  141  Mass.  335,  5  N.  E.  283 42 

Metcalf  v.  Railway  Co.,  12  App.  Div.  147,  42  X.  Y.  Supp.  661 64 

Metropolitan  Sav.  Bank  v.  Manion,  87  Md.  68,  39  Atl.  90 312 


CASES  CITED.  547 

'  Page 

Metz  v.  Railroad  Co.,  58  N.  Y.  61 159 

Metzger  v.  Scliultz,  16  Ind.  App.  454,  43  N.  E.  886 303,  304 

Meuer  v.  Railway  Co.,  5  S.  D.  568,  59  N.  W.  945 244 

Mexican  Cent.  Ry.  Co.  v.  Lauricella,  87  Tex.  277,  28  S.  W.  277 205 

Mexican  Xat.  Ry.  Co.  v.  Finch,  8  Tex.  Civ.  App.  409,  27  S.  W.  1028 126 

v.  Musette,  86  Tex.  708,  26  S.  W.  1075 18,  19 

Meyer  v.  Hart,  23  App.  Div.  131,  48  N.  Y.  Supp.  904 415 

v.  Lemcke,  31  Ind.  208 284 

v.  Railway  Co.,  4  C.  C.  A.  221,  54  Fed.  116 175,  205 

Michaels  v.  Railroad  Co.,  30  N.  Y.  564 24,  225,  227 

Michaelson  v.  Brick  Co.,  94  Iowa,  725,  62  N.  W.  15 112 

Michigan  Cent.  R.  Co.  v.  Austin,  40  Mich.  247 116 

v.  Boyd,   91  111.  268 256 

v.  Burrows,   33   Mich.    6 234,  236 

v.  Carrow,  73  111.  348 271-273 

v.  Coleman,  28  Mich.  440 208 

v.  Curtis,  80  111.  324 225 

v.  Hale,  6  Mich.  243 239,  254,  256,  257 

v.  Mfg.  Co.,  16  Wall.  318,  328 239,  257,  287,  294 

v.  Smithson,  45  Mich.  212,  7  N.  W.  791 96 

v.  Ward,  2  Mich.  538 239 

Michigan  Southern  &  N.  I.  R.  Co.  v.  Day,  20  111.  375 235,  281 

v.  McDonough,  21  Mich.  165 265 

v.  Shurtz,  7  Mich.  515 279 

Middleton  v.  Fowler,  1  Salk.  282 267 

Mierson  v.  Hope,  2  Sweeny  (N.  Y.)  561 233 

Miles  v.  Railroad  Co.,  86  Hun,  508,  33  N.  Y.  Supp.  729 337 

Millard  v.  Webster,  54  Conn.  415,  8  Atl.  470 298 

Miller  v.  City  of  Bradford,  186  Pa.  St.  164,  40  Atl.  409 434 

v.  City  of  Minneapolis  (Minn.)  77  N.  W.  788 443 

v.  City  of  St.  Paul,  38  Minn.  134,  36  N.  W.  271 433,  435 

v.  Hahn  (Mich.)  74  N.  W.  1015 382 

v.  Mansfield,  112  Mass.  260 288 

v.  Mariner's  Church,  7  Me.  51 54 

v.  Martin,   16   Mo.    508 349,  350 

v.  Miller,  17  Ind.  App.  604,  47  N.  E.  338 82 

v.  Mining  Co.  (Utah)  55  Pac.  58 120 

v.  Navigation  Co.,  10  N.  Y.  431 215,  227 

v.  Pendleton,  8  Gray  (Mass.)  547 216 

V.  Railroad  Co.,  21  App.  Div.  45,  47  N.  Y.  Supp.  285 96,  257,  751 

55  Ga.  143 401 

93  Ga.  630,  21  S.  E.  153 179 

81  Hun.  152,  30  N.  Y.  Supp.  751 337 

144  Ind.  323,  43  N.  E.  257 338 

109  Mo.  350,  19  S.  W.  58 148 

1  Mo.   App.   Rep'r,  474 221,  237 

125  N.  Y.  118,  26  N.  E.  35 312 

v.  Rinaldo,  21  Misc.  Rep.  470,  47  N.  Y.  Supp.  636. 315 

v.  Southern  Pac.  Co.,  20  Or.  285,  26  Pac.  70 149 


548  CASES  CITED. 

Page 

Miller  v.  Whelan,  158  111.  544,  42  N.  E.  59 374- 

v.  Wilson,  24  Pa.  St.  114 374 

v.  Woodhead,  104  N.  Y.  471,  11  N.  E.  57 41) 

Milliman  v.  Railroad  Co.,  66  N.  Y.  642 192 

Mills  v.  City  of  Brooklyn,  32  N.  Y.  489 42t> 

v.  Railroad  Co.,  1  Marv.  269,  40  Atl.  1114 85,  369 

45  N.  Y.  622 287 

Millsaps  v.  Railway  Co.,  69  Miss.  423,  13  South.  696 129- 

Miltimore  v.  Railway  Co.,  37  Wis.  190 227,  231 

Milton  v.  Steamboat  Co.,  37  N.  Y.  210 54 

Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  94  U.  S.  469,  475 

10,  12,  16,  18,  221,  352 

Minerly  v.  Ferry  Co.,  56  Hun,  113,  9  N.  Y.  Supp.  104 46 

Minor  v.  Railroad  Co.,  21  App.  Div.  307,  47  N.  Y.  Supp.  307 181 

Minster  v.  Railway  Co.,  53  Mo.  App.  276 56 

Minter  v.  Railroad  Co.,  41  Mo.  503 270,  272 

Mississippi  Cent.  R.  Co.  v.  Mason,  51  Miss.  234 51 

Mississippi  Cotton  Oil  Co.  v.  Ellis,  72  Miss.  191,  17  South.  214 93 

Mississippi  &  T.  R.  Co.  v.  Ayres,  16  Lea  (Tenn.)  725 413 

v.  Gill,  66  Miss.  39,  5  South.  393 181 

Missouri  Coal  &  Oil  Co.  v.  Railroad  Co.,  35  Mo.  84 280 

Missouri  Furnace  Co.  v.  Abend,  107  111.  44 120,  418 

Missouri,  K.  &  T.  Ry.  Co.  v.  Bellows  (Tex.  Civ.  App.)  39  S.  W.  1000 347 

v.  Carter,  9  Tex.  Civ.  App.  677,  29  S.  W.  565 252 

v.  Edwards,  90  Tex.  65,  36  S.  W.  430 307 

v.  McGlamory  (Tex.  Civ.  App.)  34  S.  W.  359 155 

v.  Meithvein  (Tex.  Civ.  App.)  33  S.  W.  1093 342 

v.  Miller,  8  Tex.  Civ.  App.  241,  27  S.  W.  905 211 

39  S.  W.  (Tex.  Civ.  App.)  583 211 

v.  Olive  (Tex.  Civ.  App.)  23  S.  W.  526 227 

v.  Shockman,  59  Kan.  774,  52  Pac.  446 70 

v.  Simmons,  12  Tex.  Civ.  App.  500,  33  S.  W.  1096 193 

Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v.  Dobbins  (Tex.  Civ.  App.)  40  S.  W.  861    49 

v.  Evans  (Tex.  Civ.  App.)  41  S.  W.  80 107 

v.  Hannig,  91  Tex.  347,  43  S.  W.  508 3 

49  S.  W.  (Tex.  Civ.  App.)  116 151 

v.  Murphy  (Tex.  Civ.  App.)  35  S.  W.  66 200 

v.  Rogers,  91  Tex.  52,  40  S.  W.  956 41,  59 

v.  Webb  (Tex.  Civ.  App.)  49  S.  W.  526 3 

Missouri  Pac.  Ry.  Co.  v.  Barber,  44  Kan.  612,  24  Pac.  969 403 

v.  Bradshaw,  33  Kan.  533,  6  Pac.  917 346 

v.  Breeding  (Tex.  App.)  16  S.  W.  184 29'J 

v.  Dwyer,  36  Kan.  58,  12  Pac.  352 147 

v.  Evans,  71  Tex.  361,  9  S.  W.  325 183 

v.  Fagan,  72  Tex.  127,  9  S.  W.  749 252 

v.  Geist,  49  Neb.  489,  68  N.  W.  640 328 

v.  Grocery  Co.,  55  Kan.  525,  40  Pac.  899 287,  290 

v.  Harris,  67  Tex.  '166,  2  S.  W.  574 252 

v.  Henry,  75  Tex.  220,  12  S.  W.  828 411 


CASES  CITED.  549 

Page 

Missouri  Pac.  Ry.  Co.  v.  Ivy,  71  Tex.  409,  9  S.  W.  346 191 

v.  Lee,  70  Tex.  496,  7  S.  W.  857 83,  411 

v.  Lehmberg,  75  Tex.  61,  12  S.  W.  838 407 

v.  Levi  (Tex.  App.)  14  S.  W.  1062 225,  229,  236 

v.  Lewis,  24  Neb.  848,  40  X.  W.  401 401,  402 

v.  Liveright  (Kan.  App.)  53  Pac.  763 273 

v.  McFadden,  154  U.  S.  155,  14  Sup.  Ct.  990 280 

v.  Mfg.  Co.,  79  Tex.  26,  14  S.  W.  785 220 

v.  Moffatt  (Kan.  Sup.)  55  Pac.  837 340 

Y.  Nevill,  60  Ark.  375,  30  S.  W.  425 229,  287 

v.  Peregoy,  36  Kan.  424,  14  Pac.  7 410,  413 

v.  Prewitt  (Kan.  App.)  51  Pac.  923 65 

v.  Railway  Co.,  31  Fed.  526 352 

41  Fed.  316 60 

v.  Stevens,  35  Kan.  622,  12  Pac.  25 44 

v.  Williams,  75  Tex.  4,  12  S.  W.  835 149 

Mitchell  v.  Chase,  87  Me.  172,  32  Atl.  867 303 

v.  City  of  Rome,  49  Ga.  29 438 

v.  Com.,  37  Pa.  St.  187 385 

v.  Corbin,  91  Ala.  599,  8  South.  810 383 

v.  Crassweller,  13  C.  B.  237 173 

v.  Motor  Co.,  9  Wash.  120,  37  Pac.  341 67 

v.  Railroad  Co.,  L.  R.  10  Q.  B.  256 287,  288 

34  Atl.  (N.  H.)  674 328,  329 

100  Tenn.  329,  45  S.  W.  337 87 

M.  M.  Chase,  The,  37  Fed.  708 233 

Mobile  &  G.  R.  Co.  v.  Copeland,  63  Ala.  219 295 

Mobile  &  M.  R.  Co.  v.  Ashcraft,  48  Ala.  15 41 

v.  Crenshaw,  65  Ala.  566 67,  84 

v.  Smith,  59  Ala.  245 145 

Mobile  &  O.  R.  Co.  v.  George,  94  Ala.  199,  10  South.  145 145 

v.  Hopkins,  41  Ala.  486 212,  249 

y.  McArthur,  43  Miss.  180 180 

v.  Mfg.  Co.,  67  Miss.  35,  7  South.  279 296 

v.  Massey,  152  111.  144,  38  N.  E.  787 135 

v.  Stinson,  74  Miss.  453,  21  South.  14 355,  359 

v.  Thomas,  42  Ala.  672 145,  203 

Moe  v.  Smiley,  125  Pa.  St.  136,  17  Atl.  228 402 

Mohawk,  The,  8  Wall.  153 227 

Mohr  v.  Railroad  Co.,  40  Iowa,  579 288 

Monahan  v.  City  of  Worcester,  150  Mass.  439,  23  N.  E.  228 99,  100 

Monk  v.  Town  of  New  Utrecht,  104  N.  Y.  552,  11  N.  E.  268 456 

Mouongahela  Bridge  Co.  v.  Kirk,  46  Pa.  St.  112 320 

Monongahela  City  v.  Fischer,  111  Pa.  St.  9,  2  Atl.  87 37 

Montgomery  v.  Gilmer,  33  Ala.  116 428 

v.  The  Port  Adelaide,  38  Fed.  753 284 

v.  Railway  Co.,  24  App.  Div.  454,  48  N.  Y.  Supp.  849 196 

Montgomery  Gaslight  Co.  v.  Railway  Co.,  86  Ala.  372,  5  South.  735 3G 

Montgomery  &  E.  Ry.  Co.  v.  Kolb,  73  Ala.  396 281 


550  CASES  CITED. 

Page 

Montriou  v.  Jeffreys,  2  Car.  &  P.  113 372 

Moody  v.  City  of  New  York,  43  Barb.  (X.  Y.)  282 313 

v.  McDonald,  4  Cal.  297 7 

v.  Railroad  Co.,  68  Mo.  470 417 

Mooers  v.  Larry,  15  Gray  (Mass.)  451 31 

v.  Railroad  Co.,  69  Minn.  90,  71  N.  W.  905 343 

Moomey  v.  Peak,  57  Mich.  259,  23  N.  W.  804 42 

Mooney  v.  Borough  of  Luzerne,  186  Pa.  St  161,  40  Atl.  311,  42  Wkly.  Notes 

Gas.  279 432 

Moon's  Adm'r  v.  Railroad  Co.,  78  Va.  745 .150 

Moore  v.  Henry,  18  Mo.  App.  35 293 

v.  Mill  Co.,  55  Mo.  App.  491 Ill 

v.  Railroad  Co.,  47  Iowa,  688 333 

3  Mich.  23 227 

85  Mo.  588 148 

126  Mo.  265,  29  S.  W.  9 43,  52 

45  S.  W.  (Tex.  Civ.  App.)  609 182 

v.  Sanborne,  2  Mich.  519,  520 169,  173 

v.  Steel  Co.  (Pa.  Sup.)  7  Atl.  198 314,  317 

v.  Steljes,  69  Fed.  518 315 

Moore  Lame  Co.  v.  Richardson's  Adm'r,  95  Va.  326,  28  S.  E.  334 102,  150 

Moran  v.  Car  Co.,  134  Mo.  641,  36  S.  W.  659 307 

v.  Rollings,  125  Mass.  93 398 

v.  Railway  Co.,  48  Minn.  46,  50  N.  W.  930 103 

Morange  v.  Mix,  44  N.  Y.  315 388 

Moratzky  v.  Wirth,  67  Minn.  46,  69  N.  W.  480 378 

Morbach  v.  Mining  Co.,  53  Kan.  731,  37  Pac.  122. 121 

Morch  v.  Railway  Co.,  113  Mich.  154,  71  N.  W.  464 137 

Moreland  v.  Leigh,  1  Starkie,  388 382 

v.  Railroad  Co.,  141  Mass.  31,  6  N.  E.  225 207 

Morey  v.  Town  of  Xewfane,  8  Barb.  (X.  Y.)  645 42G 

Morgan  v.  Bowman,  22  Mo.  538 162 

v.  Bridge  Co.,  5  Dill.  96,  Fed.  Gas.  Xo.  9,802 06,  84 

v.  City  of  Des  Moines,  54  Fed.  456 426 

v.  Cox,  22  Mo.  373 367 

v.  Durfee,  69  Mo.  469 393 

v.  Iron  Co.,  133  X.  Y.  666,  31  X.  E.  234 102 

v.  Railway  Co.,  5  Best  &  S.  570,  L.  R.  1  Q.  B.  149 130 

Morganton  Mfg.  Co.  v.  Railway  Co.,  121  X.  C.  514,  28  S.  E.  474 296 

Morgridge  v.  Telephone  Co.,  39  Atl.  328 149 

Moriarty  v.  Railway  Co.,  64  Iowa,  696,  21  X.  W.  143 345 

Morier  v.  Railway  Co.,  31  Minn.  351,  17  X.  W.  952 171 

Morley  v.  Railway  Co.,  16  U.  C.  Q.  B.  504 407 

Morris  v.  Railroad  Co.,  68  Hun,  39,  22  X.  Y.  Supp.  666 77 

45  Iowa,  29 38 

65  Iowa,  727,  23  X.  W.  143  401 

v.  Town  of  East  Haven,  41  Conn.  252 100 

Morrisey  v.  Hughes,  65  Vt  553,  27  Atl.  205 89 


CASES  CITED.  551 

Page 

Morrison  v.  Burnett,  56  111.  App.  129 372 

v.  City  of  Lawrence,  98  Mass.  219 441,  445 

v.  Davis,  20  Pa.  St.  171 24,  221,  225 

v.  Shelby  Co.,  116  Ind.  431,  19  N.  E.  316 43 

Morris  &  E.  R.  Co.  v.  Ayres,  29  X.  J.  Law,  393 288 

v.  Haslan,  33  X.  J.  Law,  147 75,  332 

v.  State,  36  X.  J.  Law,  553 353 

Morrow  v.  Railway  Co.  (Minn.)  73  X.  W.  973 99 

v.  Sweeney,  10  Ind.  App.  626,  38  X.  E.  187 305 

Morse  v.  Slue,  1  Vent  190 229 

Morton  v.  Railroad  Co.,  81  Mich.  423,  46  X.  W.  Ill 136 

Moser  v.  Railroad  Co.,  42  Minn.  480,  44  X.  W.  530 341 

Moses  v.  Railroad  Co.,  24  X.  H.  71,  91 239,  247,  254,  260,  261,  279 

32  X.  H.  523  286-288 

Mosher  v.  Express  Co.,  38  Ga.  37 295 

v.  Railway  Co.,  23  Fed.  326 198 

127  U.  S.  390,  8  Sup.  Ct.  1324 , 199 

Moss  v.  Council,  93  Ga.  797,  20  S.  E.  653 443 

v.  Jenkins,  146  Ind.  589,  45  X.  E.  789 383 

v.  Johnson,  22  111.  633   93 

Mote  v.  Railroad  Co.,  27  Iowa,  22 289 

Motey  v.  Granite  Co.,  20  C.  C.  A.  366,  74  Fed.  155 10 

Mott  v.  Ice  Co.,  73  X.  Y.  543 173 

Moulder  v.  Railroad  Co.,  1  Ohio  X.  P.  361 3 

Moulton  v.  Inhabitants.  51  Me.  127 23 

v.  Railroad  Co.,  31  Minn.  85,  16  X.  W.  497 249,  262,  266 

Mt.  Yernon  Co.  v.  Railroad  Co.,  92  Ala.  296,  8  South.  687 279 

Mouse's  Case,  12  Coke,  63 452 

Mower  r.  Inhabitants,  9  Mass.  247 454 

Moynihan  v.  Hills  Co.,  146  Mass.  586-594,  16  N.  E.  574 130,  133,  138 

v.  Whidden,  143  Mass.  287,  9  X.  E.  645 66 

Muckle  v.  Railway  Co.,  79  Hun,  32.  29  X.  Y.  Supp.  732 198 

Muclgett  v.  Steamboat  Co.,  1  Daly  (X.  Y.)  151 275-277 

Mulcairns  v.  City  of  Janesville,  67  Wis.  24,  29  X.  W.  565 408 

Muldoon  v.  Railway  Co.,  10  Wash.  311,  38  Pac.  995 191 

Muldowney  v.  Traction  Co.,  8  Pa.  Super.  Ct.  335,  43  Wkly.  Xotes  Gas.  52. .  201 

Mulhado  v.  Railroad  Co.,  30  X.  Y.  370 181 

Mulherrin  v.  Railroad  Co.,  81  Pa.  St.  363 79 

Mulholland  v.  Samuels,  8  Bush    (Ky.)  63 387 

Muller  v.  McKesson,  73  X.  Y.  195 114 

v.  Pondir,  55  X.  Y.  325 298 

Mullett  v.  Mason,  L.  R.  1  C.  P.  559 366 

Mulligan  v.  Curtis,  100  Mass.  51 2 72 

v.  Railway  Co.,  36  Iowa,   181 256,  293,  295 

129  X.  Y.  506,  29  X.  E.  952 173,  174 

Mulvehill  v.  Bates,  31  Minn.  364,  17  X.  W.  959 173 

Mumford  v.  Brown,  G  Cow.  (X.  Y.)  475 315 

Munch  v.  Railroad  Co.,  29  Barb.  (X.  Y.)  647 346 

Muncie  Pulp  Co.  v.  Jones,  11  Ind.  App.  110,  38  X.  E.  547 94,  112 


552  CASES  CITED. 

Page 

Mundle  v.  Mfg.  Co.,  86  Me.  400,  30  Atl.  16 Ill,  112 

Munger  v.  City  of  Sedalia,  66  Mo.  App.  629 61 

v.  Railroad  Co.,  5  Denio  (N.  Y.)  255 341 

4  N.  Y.  349 37,  39,  340 

Munn  v.  Baker,  2  Starkie,  255 238,  253,  256 

Munns  v.  Loveland,  15  Utah,  250,  49  Pac.  743 382 

Murch  v.  Railroad  Corp.,  29  N.  H.  9 187 

Murdock  v.  Inhabitants,  4  Gray  (Mass.)  178 IS 

v.  Railroad  Co.,  137  Mass.  293 198 

v.  Walker,  43  111.  App.  590 18,  19 

Murphy  v.  Deane,  101  Mass.  455,  466 37,  82 

v.  Gloucester,  105  Mass.  470 4."..") 

v.  Holbrook,  20  Ohio  St.  187 159 

v.  Hughes  (Del.  Super.)  40  Atl.  187 91,  97,  102 

v.  Pollock,  15  Ir.  C.  L.  224 98 

v.  Railroad  Co.,  30  Conn.  184 398 

23  Fed.  637 195 

2  Ir.  (1897)  301 207 

118  Mass.  228 183 

88  N.  Y.  146,  445 134.  406 

45    Wis.    222 360 

Murray  v.  Currie,  L.  R.  6  C.  P.  24 129 

v.  Railroad  Co.,  31  La.  Ann.  490 394 

1   McMul.   385 124 

v.  Warner,  55  N.  H.  546 281 

Muscarro  v.  Railroad  Co.  (Pa.  Sup.)  43  Atl.  527 330 

Muschamp  v.  Railway  Co.,  8  Mees.  &  W.  421 182,  294 

Musick  v.  Packing  Co.,  58  Mo.  App.  322 148 

Mutual  Ins.  Co.  v.  Tweed,  7  Wall.  44 351 

Myers  v.  W.  C.  De  Pauw  Co.,  138  Ind.  590,  38  N.  E.  37 95 

Mykleby  v.  Railway  Co.,  39  Minn.  54,  38  N.  W.  763 185 

Mynard  v.  Railroad  Co.,  71  N.  Y.  180 245,  253,  262,  286 

Mynning  v.  Railroad  Co.,  59  Mich.  257.  26  N.  W.  514 405 

Myrick  v.  Railroad  Co.,  9  Biss.  44,  Fed.  Cas.  No.  10,001 293 

1  Sup.  Ct.  425 262,  290,  292,  294 

Mytton  v.  Railway  Co.,  4  Hurl.  &  N.  614,  615 182 

28  Law  J.  Exch.  385 .295 


N 

Nagel  v.  Railway  Co.,  75  Mo.  653 18.  69,  409 

Nagle  v.  Railroad  Co.,  88  Pa.  St.  35 66 

Naglee  v.  Railroad  Co.,  83  Va.  707,  3  S.  E.  369 209 

Najac  v.  Railroad  Co.,  7  Allen  (Mass.)  329 182 

Nanson  v.  Jacob,  12  Mo.  App.  125,  127 290 

Nash  v.  Tousley,  28  Minn.  5,  8  N.  W.  875 400 

Nashua  Iron  &  Steel  Co.  v.  Railroad  Co.,  62  N.  H.  159 38 

Nashua  Lock  Co.  v.  Railroad  Co.,  48  N.  H.  339 292,  295 


CASES  CITED.  553 

Page 

Nashville,  C.  &  St.  L.  R.  Co.  v.  Foster,  10  Lea,  351 149 

v.  Gann  (Tenn.  Sup.)  47  S.  W.  493 11(3,  149 

Nashville  &  C.  R.  Co.  v.  Carroll,  6  Heisk.  (Tenu.)  347 149 

v.  David,  6  Heisk.  (Tenn.)  261 221,  226 

v.  Estes,  10  Lea  (Teiin.)  749 229,  232 

v.  Messino,  1  Sneed  (Term.)  220 193,  206 

v.  Prince,  2  Heisk.  (Tenn.)  580 39S 

v.  Smith,  6  Heisk.  (Tenn.)  174 394 

v.  Sprayberry,  9  Heisk.  (Tenn.)  852 182 

Nason  v.  City  of  Boston,  14  Allen  (Mass.)  508 433 

National  Fertilizer  Co.  v.  Travis  (Tenn.  Sup.)  49  S.  W.  832 149 

Naugatuck  R.  Co.  v.  Button  Co.,  24  Conn.  468 292,  294 

Nauruberg  v.  Young,  44  N.  J.  Law,  331-345 '. 315 

Nave  v.  Flack,  90  Ind.  205 304. 

Naylor  v.  Railway  Co.,  53  Wis.  661,  11  N.  W.  24 112 

Neal  v.  Gillett,  23  Conn.  437 36 

v.  Price,  11  Ga.  297 381 

v.  Railroad  Co.,  8  Jones,  Law  (N.  C.)  482 283,  288 

Needham  v.  Railroad  Co.,  37  Cal.  409 46,  51,  52,  342 

38   Vt.   294 405 

Neff  v.  Inhabitants,  148  Mass.  487,  20  N.  E.  Ill 75,  431 

Neilson  v.  Brown,  13  R.  I.  651 393 

Nelliug  v.  Railroad  Co.,  98  Iowa,  554,  63  N.  W.  404 152 

Nelson  v.  Brewery  Co.,  2  C.  P.  Div.  311 312,  316 

v.  Car-Wheel  Co.,  29  Fed.  840 95 

v.  Railroad  Co.,  48  X.  Y.  498 252 

78  N.  W.  (Minn.)  1041 330 

78  Tex.  621,  14  S.  W.  1021 404,  420 

88  Wis.  392,  60  X.  W.  703 337 

v.  Shaw  (Wis.)  78  N.  W.  417 120 

Nelson  Business  College  Co.  v.  Lloyd  (Ohio  Sup.)  54  N.  E.  471 169 

Nesbit  v.  Town  of  Garner,  75  Iowa,  314,  39  N.  W.  516 55,  60,  61 

Nesbitt  v.  Lushington,  4  Term  R.  783 229 

Xetzer  v.  City  of  Crookston,  59  Minn.  244,  61  N.  W.  21 432,  433 

Neuert  v.  City  of  Boston,  120  Mass.  338 9,  452 

Neutz  v.  Coke  Co.,  139  Ind.  411,  38  N.  E.  324,  39  N.  E.  147 147 

Nevins  v.  Steamboat  Co.,  4  Bosw.  (N.  Y.)  225 198,  258,  271 

New  Albany  Forge  &  Rolling  Mill  v.  Cooper,  131  Ind.  363,  30  N.  E.  294.161,  162 

Newbold  v.  Mead,  57  Pa.  St.  487 39 

New  Brunswick  Steamboat  &  Canal  Transp.  Co.  v.  Tiers,  24  N.  J.  Law, 

697 227,  228 

Newdoll  v.  Young,  80  Hun,  364,  30  N.  Y.  Supp.  84 ' 62 

Newell  v.  Smith,  49  Vt.  255 257 

Newhall  v.  Vargas,  13  Me.  93 297 

New  Jersey  Steamboat  Co.  v.  Brockett,  121  U.  S.  637,  7  Sup.  Ct.  1039 185 

New  Jersey  Steam  Nav.  Co.  v.  Bank,  6  How.  343,  344,  382,  383 

192,  238,  239,  254,  260,  286 
Newlin  Tp.  v.  Davis,  77  Pa.  St.  317 456 


554  CASES   CITED. 

Page- 
Newman  v.  Railroad  Co.,  80  Iowa,  672,  45  N.  W.  1054 394 

52  N.  J.  Law,  446,  19  Atl.  1102 71 

v.  Schueck,  58  111.  App.  328 374 

New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Bailey,  40  Miss.  395 211 

v.  Hughes,  49  Miss.  258 133,  148 

v.  Hurst,  36  Miss.  660 180- 

New  Orleans  Mut.  Ins.  Co.  v.  Railroad  Co.,  20  La.  Ann.  302 238- 

New  Orleans,  St  L.  &  C.  R.  Co.  v.  Burke,  53  Miss.  200 '.  207 

v.  Faler,  58  Miss.  911 239 

New  Orleans  &  N.  E.  R.  Co.  v.  McEwen  &  Murray,  49  La.  Ann.  1184,  22 

South.  675 32 

v.  Reese,  61  Miss.  581 166 

Newport  News  &  M.  V.  Co.  v.  Dentzel's  Adm'r,  91  Ky.  42,  14  S.  W.  958.  .6,  398 

v.  Howe,  3  C.  C.  A.  121,  52  Fed.  362,  363 38,  125 

Newport  News  &  M.  V.  R.  Co.  v.  Mendell  (Ky.)  34  S.  W.  1081 296 

Newson  v.  Railroad  Co.,  29  N.  Y.  383 211 

Newton  v.  City  of  Worcester,  169  Mass.  516,  48  N.  E.  274 434 

v.  Pope,  1  Cow.  (N.  Y.).109 31 

New  World,  The,  v.  King,  16  How.  469 190> 

New  York  Cent.  R.  Co.  v.  Lockwood,  17  Wall.  357 213,  239 

New  York  Cent  &  H.  R.  R.  Co.  v.  Fraloff,  100  U.  S.  24.  .230,  247,  267,  269,  27$ 
New  York,  0.  &  St.  L.  R.  Co.  v.  Blumenthal,  160  111.  40,  43  N.  E.  809 191 

v.  Grossman,  17  Ind.  App.  652,  46  N.  E.  546 359- 

v.  Zumbaugh,  17  Ind.  App.  171,  46  N.  E.  548 34ff 

New  York,  L.  E.  &  W.  R.  Co.  v.  Burns,  51  N.  J.  Law,  340,  17  Atl.  630 190= 

v.  Steinbrenner,  47  N.  J.  Law,  161 57 

New  York,  N.  H.  &  H.  R.  Co.  v.  Blessing,  14  C.  C.  A.  394,  67  Fed.  277.. 336,  337 

New  York,  P.  &  N.  R.  Co.  v.  Thomas,  92  Va.  606,  24  S.  E.  264 355,  356- 

New  York  &  Brooklyn  Sawmill  &  Lumber  Co.  v.  City  of  Brooklyn,  71  N. 

Y.  580 441 

New  York  &  E.  R.  Co.  v.  Skinner,  19  Pa.  St.  298 34J. 

New  York  &  G.  L.  Ry.  Co.  v.  Railway  Co.,  60  N.  J.  Law,  52,  37  Atl.  627. ..     87 

New  York  &  M.  L.  R.  Co.  v.  Winans,  17  How.  30 209 

Niagara,  The,  v.  Cordes,  21  How.  7 221,  222 

Nichols  v.  City  of  Minneapolis,  30  Minn.  545,  16  N.  W.  410 426- 

v.  Smith,  115  Mass.  332 216 

v.  Winfrey,  79  Mo.  544 393 

Nicholsburg  v.  Railroad  Co.,  11  Misc.  Rep.  432,  32  N.  Y.  Supp.  130 41 

Nicholson  v.  Railway  Co.,  3  Hurl.  &  C.  534 208 

41  N.  Y.  525 332 

v.  Willan,  5  East,  507 238 

Niskern  v.  Railway  Co.,  22  Fed.  811 360 

Nitro-Phosphate  &  O.  C.  Manure  Co.  v.  Docks  Co.,  9  Ch.  Div.  503 23,  2ft 

Noble  v.  City  of  Richmond,  31  Grat.  (Va.)  271 42.3 

v.  Railroad  Co.,  98  Mich.  249,  57  N.  W.  126 202 

4  Okl.  534,  46  Pac.  483 184 

Noblesville  &  E.  Gravel  Road  Co.  v.  Gause,  76  Ind.  142 171 

Noble  Tp.  v.  Aasen  (N.  D.)  76  N.  W.  990 441 

Nofsinger  v.  Goldman  (Cal.)  55  Pac.  425 Ill 


CASES   CITED.  555 

Page 

Xohrden  v.  Railroad  Co.  (S.  C.)  32  S.  E.  524 416- 

Nolan  v.  Railroad  Co.,  53  Conn.  461,  4  Atl.  106 44 

70  Conn.  159,  39  'Atl.  115 102 

41  X.  Y.  Super.  Ct.  541 194 

Noll  v.  Railroad  Co.,  163  Pa.  St.  504,  30  Atl.  157 140 

Nolton  v.  Railroad  Corp.,  15  X.  Y.  444 188,  190 

Nordyke  &  Marmon  Co.  v.  Van  Sant,  99  Ind.  188 90,  94,    97 

Norfolk  &  P.  R.  Co.  v.  Ormsby,  27  Grat.  (Va.)  455 71 

Norfolk  &  W.  R.  Co.  v.  Adams,  90  Ya.  393,  18  S.  E.  G73 288 

v.  Ampey,  93  Ya.  108,  25  S.  E.  226 90,  117 

v.  Brown,  91  Ya.  668,  22  S.  E.  496 150 

v.  De  Board's  Adm'r,  91  Va.  700,  22  S.  E.  514 327 

v.  Donnelly's  Adm'r,  88  Va.  853,  14  S.  E.  692 150 

v.  Groseclose's  Adm'r,  88  Ya.  267,  13  S.  E.  454 71,  178,  396- 

v.  Hoover,  79  Md.  253,  29  Atl.  994 99,  100,  148 

v.  Houchins'  Adm'r,  95  Va.  398,  28  S.  E.  578 132,  150 

v.  Irvine,  84  Va.  553,  5  S.  E.  532;   85  Va.  217,  7  S.  E.  233 272,  27£ 

v.  Marshall's  Adm'r,  90  Va.  836,  20  S.  E.  823 23 

v.  Xuekol's  Adm'r,  91  Ya.  193,  21  S.  E.  342 97 

v.  Shott,  92  Va.  34,  22  S.  E.  811 188,  189- 

v.  Ward,  90  Va.  687,  19  S.  E.  849 94 

v.  Wysor,  82  Va.  250 199- 

Norris  v.  Kohler,  41  X.  Y.  42 157 

v.  Litchfield,  35  X.  H.  271,  277 46,  47 

v.  Railroad  Co.,  23  Fla.  182,  1  South.  475 226,  22T 

39   Me.   273 .'..  347 

v.  Warner,  59  111.  App.  300 363 

Norristown  v.  Moyer,  67  Pa.  St.  355 25- 

North  Chicago  Rolling-Mill  Co.  v.  Johnson,  114  111.  57,  29  X.  E.  186 134 

v.  Morrissey,   111   HI.   646 414 

North  Chicago  St.  R.  Co.  v.  Cook,  145  111.  551,  33  X.  E.  958 205 

Northern  v.  Williams,  6  La.  Ann.  578 286- 

Northern  Cent.  R.  Co.  v.  Husson,  101  Pa.  St.  1 110 

v.  State,  29  Md.  420 2,  52,  54,  339^ 

Northern  Pac.  Coal  Co.  v.  Richmond,  7  C.  C.  A.  485,  58  Fed.  756 126 

Northern  Pac.  R.  Co.  v.  Austin,  12  C.  C.  A.  97,  64  Fed.  211. 334 

V.  Charless,  162  U.  S.  359,  16  Sup.  Ct.  848 95,  145 

7  U.  S.  App.  359,  2  C.  C.  A.  380,  51  Fed.  562 103 

v.  Craft,  16  C.  C.  A.  175,  69  Fed.  124 145 

v.  Everett,  152  U.  S.  107,  14  Sup.  Ct  474 108 

v.  Freeman,  174  U.  S.  379.  19  Sup.  Ct.  763 330 

v.  Herbert,  116  U.  S.  642,  647,  650-653,  6  Sup.  Ct.  590,  593 

90,  96,  132,  137,  145 

v.  Mortenson.  11  C.  C.  A.  335,  63  Fed.  530 110 

v.  Peterson,  162  U.  S.  346,  16  Sup.  Ct.  843 95 

v.  Poirier,  15  C.  C.  A.  52,  67  Fed.  881 90- 

Northern  R.  Co.  v.  Page,  22  Barb.  (X.  Y.)  130 198,  201 

v.  Railroad  Co.,  6  Allen  (Mass.)  254 291 


-556  CASES  CITED. 

Page 

North  Pennsylvania  R.  Co.  v.  Heileman,  49  Pa.  St.  GO 82,  332 

v.  Kirk,  90  Pa.  St.  15 8G,  410,  414 

v.  Mahoney,  57  Pa.  St.  187 65,  71 

v.  Rehman,  49  Pa.  St.  101 341 

Northrup  v.  Assurance  Co.,  43  N.  Y.  516 179 

v.  Railway  Co.,  37  Hun  (N.  Y.)  295 87,  335 

Northwestern  Fuel  Co.  v.  Danielson,  6  C.  C.  A.  636,  57  Fed.  915-919 151 

Norton  v.  City  of  New  Bedford,  166  Mass.  48,  43  N.  E.  1034 443 

v.  Railroad  Co.,  122  N.  C.  910,  29  S.  E.  886 339 

v.  The  Richard  Winslow,  67  Fed.  259 285 

v.  Sewall,  106  Mass.  143 369,  370 

v.  Yolzke,  158  111.  402,  41  N.  E.  1085 68 

Norwalk  Gaslight  Co.  v.  Borough  of  Norwalk,  63  Conn.  495,  28  Atl.  32..161,  162 

Norway  Plains  Co.  v.  Railroad  Co.,  1  Gray  (Mass.)  263 216,  282,  288 

Notara  v.  Henderson,  L.  R.  5  Q.  B.  346,  L.  R.  7  Q.  B.  225 222 

Nourie  v.  Theobald  (N.  H.)  41  Atl.  182 109 

Nourse  v.  Packard,  138  Mass.  307 398 

Noyes  v.  Railroad  Co.,  24  Pac.  (Cal.)  927 394 

27   Vt.   110 216 

v.  Smith,  28  Vt.  59 89 

Nudd  v.  Wells,  11  Wis.  407 235 

Nugent  v.  Railroad  Co.,  80  Me.  62,  12  Atl.  797 117,  209 

v.  Smith,  1  C.  P.  Div.  19,  27,  423 215,  221 

v.  Vanderveer,  39  Hun  (N.  Y.)  323 399 

Nunn  v.  Railroad  Co.,  71  Ga.  710 180 

Nuss  v.  Rafsnyder,  178  Pa.  St.  397,  35  Atl.  958 116 

Nutt  r.  Railway  Co.,  25  Or.  291,  35  Pac.  653 91 

Nutting  v.  Railroad  Co.,  1  Gray  (Mass.)  502 294 


0 

•Oakes  v.  Railroad  Co.,  20  Or.  392,  26  Pac.  230 271,  272 

v.  Spaulding,  40  Vt.  347 362 

•Oakland  City  Agricultural  &  Industrial  Soc.  v.  Bingham,  4  Ind.  App.  545, 

31  N.  E.  383 174 

Oakland  Ry.  Co.  v.  Fielding,  48  Pa.  St.  320 67 

O'Bannon  v.  Express  Co.,  51  Ala.  481 280 

•O'Barr  v.  Alexander,  37  Ga.  195 372 

Obert  v.  Dunn,  140  Mo.  476,  41  S.  W.  901 301 

O'Briant  v.  Wilkerson,  122  N.  C.  304,  30  S.  E.  126 382 

O'Brien  v.  Capwell,  59  Barb.  (N.  Y.)  497 311,  315,  316 

v.  Dredging  Co.,  53  N.  J.  Law,  291,  21  Atl.  324 132,  148 

v.  McGlinchy,  68  Me.  552 72,  86 

v.  Railroad  Co.,  15  Gray  (Mass.)  20 183,  185 

80  N.  Y.  236 1S4 

O'Callaghan  v.  Bode,  84  Cal.  489,  24  Pac.  269 411 

•Ocean  S.  S.  Co.  of  Savannah  v.  Way,  90  Ga.  747,  17  S.  E.  57 230 

•Ochsenbein  v.  Shapely,  85  N.  Y.  214 154,  168 


CASES  CITED.  657 

Page 

O'Connor  v.  Adams,  120  Mass.  427 86,  106,  123- 

v.  Andrews,  81  Tex.  28,  16  S.  W.  628 313 

v.  Barker,  25  App.  Div.  121,  49  X.  Y.  Supp.  211 133 

v.  Ditch  Co.,  17  Xev.  245,  30  Pac.  882 37 

v.  Railroad  Co.,  135  Mass.  352 68 

27  Minn.  166,  6  X.  W.  481 344 

94  Mo.  150,  7  S.  W.  106 45,  325 

O'Donnell  v.  Pollock,  170  Mass.  441,  49  X.  E.  745 362 

v.  Railroad  Co.,  59  Pa.  St.  239 93,  190,  196 

O'Dwyer  v.  O'Brien,  13  App.  Div.  570,  43  X.  Y.  Supp.  815 316 

O'Flaherty  v.  Railroad  Co.,  45  Mo.  70 63,  66 

Ogdensburg  &  L.  C.  R.  Co.  v.  Pratt,  22  Wall.  123 222,  239,  294 

Og;.'  v.  City  of  Lansing,  35  Iowa,  495 450,  453 

Ogle  v.  Jones,  16  Wash.  319,  47  Pac.  747 150 

Ohio  Yalley  Railway's  Receiver  v.  Lander  (Ky.)  47  S.  W.  344,  48  S.  W.  145  195 

Ohio  &  M.  R.  Co.  v.  Allender,  59  111.  App.  620 191 

v.  Clutter,  82  111.  123 346- 

v.  Dunbar,  20  111.  624 217,  233,  262 

V.  Emrich,  24  111.   App.   245 293 

v.  Hammersley,  28  Ind.  371 123 

v.  Muhling,  30  111.  9 183,  190 

v.  Xickless,  71  Ind.  271 86- 

v.  Selby,   47   Ind.   471 212,  23S 

v.  Shanefelt,  47  111.  497 355 

v.  Siinms,  43  111.  App.  260 171 

v.  Stein,  140  Ind.  61,  39  X.  E.  246 147 

v.  Tabor,  98  Ky.  503,  32  S,  W.  168 249- 

v.  Yohe.  51  Ind.  181 232 

Oil  City  Fuel-Supply  Co.  v.  Boundy,  122  Pa.  St.  449,  15  Atl.  865 37 

Oil  City  Gas   Co.  v.  Robinson,  99  Pa.  St  1 27 

Oil  Creek  &  A.  R.  Ry.  Co.  v.  Clark,  72  Pa.  St.  231 200 

Oldenburg  v.  Railroad  Co.,  124  X.  Y.  414,  26  X.  E.  1021 333 

Oldfield  v.  Railroad  Co.,  14  X.  Y.  310 403,  405,  409,  411 

O'Leary  v.  Board,  79  Mich.  281,  44  X.  W.  608 450 

v.  City  of  Mankato,  21  Minn.  65 435- 

Oliver  v.  City  of  Denver  (Colo.  App.)  57  Pac.  729 435 

v.  City  of  Worcester,  102  Mass.  489 426,  430,  431,  449- 

v.  Railroad  Co.,  42  W.  Va.  703,  26  S.  E.  444 89 

O'Loughlin  v.  Railroad  Co.,  87  Hun,  538,  34  X.  Y.  Supp.  297 98 

Olson  v.  Railroad  Co.,  45  Minn.  536,  48  N.  W.  445 191 

Oinaha  Fair  &  Exposition  Ass'n  v.  Railroad  Co.,  42  Xeb.  105,  60  X.  W.  330. .  300 

Omaha  St.  Ry.  Co.  v.  Martin,  48  Xeb.  65,  66  X.  W.  1007 38,  52,  85- 

Omaha  &  R.  V.  Ry.  Co.  v.  Crow,  47  Xeb.  84,  66  X.  W.  121 191 

54  Xeb.  747,  74  X.  W.  1066 148,  182 

v.  Krayenbuhl,  48  Xeb.  553.  67  X.  W.  447 148 

v.  Martin,  14  Xeb.  295,  15  X.  W.  696 49 

v.  Morgan  (Xeb.)  59  X.  W.  81 67 

v.  Talbot,  48  Xeb.  627,  67  X.  W.  599 60 

v.  Wright,  47  Xeb.  886,  66  X.  W.  842 342,  343 


558  CASES  CITED. 

Page 

O'Maley  v.  Gaslight  Co.,  158  Mass.  135,  32  X.  E.  1119 48,  1_'4 

O'Malley  v.  Borough  of  Parsons  (Pa.  Sup.)  43  Atl.  384 435 

v.  Railway  Co.,  43  Minn.  294,  45  N.  W.  440 306,  307 

O'Mara  v.  Canal  Co.,  18  Hun  (N.  Y.)  192 335 

v.  Railroad  Co.,  38  N.  Y.  445 76,  336,  409,  411 

Onderdonk  v.  Railway  Co.,  74  Hun,  42,  26  N.  Y.  Supp.  310 181 

O'Neal  v.  Railway  Co.,  132  Ind.  110,  31  X.  E.  669 108,  112 

O'Neil  v.  Railway  Co.,  9  Fed.  337 91,  96 

O'Neill  v.  City  of  New  Orleans,  30  La.  Ann.  220 425 

v.  Railroad  Co.,  60  N.  Y.  138 279,  280 

Onondaga  County  Bank  v.  Bates,  3  Hill  (X.  Y.)  53 386 

Oppenheimer  v.  Express  Co.,  69  111.  62 249,  261 

Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.)  85,  114,  116 

231,  260,  267,  270,  271 

Orange  &  N.  H.  R.  Co.  v.  Ward,  47  N.  J.  Law,  560,  4  Atl.  331 86 

Orcutt  v.  Railroad  Co.,  45  Minn.  368,  47  N.  W.  1068 191 

Orman  v.  Mannix,  17  Colo.  564,  30  Pac.  1037 146 

Ormsbee  v.  Railroad  Corp.,  14  R.  I.  102 336 

Ormsby  v.  Railroad  Co.,  2  McCrary,  48,  4  Fed.  170,  706 235,  251 

O'Rourke  v.  Railroad  Co.,  44  Iowa,  526 38,  51 

v.  Tons  of  Coal,  1  Fed.  619 285 

Orr  v.  Box,  22  Minn.  485 382 

Ortt  v.  Railway  Co.,  36  Minn.  396,  31  N.  W.  519 239 

Osborn  v.  Ferry  Co.,  53  Barb.  (N.  Y.)  629 208 

Osborne  v.  McMasters,  40  Minn.  103,  41  N.  W.  543 158,  369,  370,  399 

v.  Morgan,  130  Mass.  102 130 

Ostrander  v.  City  of  Lansing,  111  Mich.  693,  70  N.  W.  332 430 

Otis  v.  Town  of  Janesville,  47  Wis.  422,  2  X.  W.  783 39,  60 

Otten  v.  Cohen  (City  Ct.  X.  Y.)  1  X.  Y.  Supp.  430 19 

Ouimit  v.  Henshaw,  35  Vt.  604,  605 269,  272,  287,  289 

Ouverson  v.  City  of  Graf  ton,  5  X.  D.  281,  65  X.  W.  676 60,  436 

Overby  v.  Railway  Co.,  37  W.  Va.  524,  16  S.  E.  813 38 

Overholt  v.  Vieths,  93  Mo.  422,  6  S.  W.  74 412 

Overland  Mail  &  Express  Co.  v.  Carroll,  7  Colo.  43,  1  Pac.  682 238 

Overton  v.  Freeman,  11  C.  B.  867 166,  167 

Owen  v.  Brockschmidt,  54  Mo.  285 406 

v.  Railroad  Co.,  87  Ky.  626,  9  S.  W.  698 251 

Owens  v.  Railroad  Co.,  58  Mo.  386 344 

Owings  y.  Jones,  9  Md.  108 313 

P 

Pacific,  The,  1  Blatchf .  569,  Fed.  Gas.  Xo.  10,643 193 

Pacific  Exp.  Co.  v.  Darnell  (Tex.  Sup.)  6  S.  W.  765 251 

v.  Foley,  46  Kan.  457,  26  Pac.  665 247 

Pacific  R.  Co.  v.  Houts,  12  Kan.  328 80 

Packard  v.  Earle,  113  Mass.  280 282 

V.  Getman,  6  Cow.  (X.  Y.)  757 280,  281 

V.  Taylor,  35  Ark.  402 228 


CASES  CITED.  559 

Page 

Paddock  v.  Railroad  Co.,  37  Fed.  841 175 

Padgett  Y.  Railroad  Co.,  7  Kan.  App.  736,  52  Pac.  578 82,  356,  350 

Paducah  &  M.  R.  Co.  v.  Hoehl,  12  Bush  (Ky.)  41 336 

Page  v.  Bucksport,  64  Me.  51 13 

v.  Gushing,  38  Me.  523 383 

v.  Hodge,  63  X.  H.  610,  4  Atl.  805 55 

Paige  v.  Roeding,  96  Cal.  388,  31  Pac.  264 156,  157 

v.  Smith,  99  Mass.  395 216 

Painter  v.  Mayor,  etc.,  46  Pa.  St.  213 300 

Painton  v.  Railroad  Co.,  83  N.  Y.  7 118 

Palmer  v.  Canal  Co.,  120  X.  Y.  170,  24  N.  E.  302 29,  203 

v.  Inhabitants,  2  Cush.  (Mass.)  600 23 

y.  Lorillard,  16  Johns.  (X.  Y.)  348 236 

v.  McMaster,  10  Mont.  390,  25  Pac.  1056 383 

v.  Pennsylvania  Co.,  Ill  X.  Y.  488,  18  X.  E.  859 207 

v.  Railroad  Co.,  101  Cal.  187,  35  Pac.  630 225,  227 

112  X.  Y.  234,  19  X.  K  678 325,  333,  399 

Palmeri  v.  Railway  Co.,  133  X.  Y.  261,  30  X.  E.  1001 170,  174 

Panton  v.  Holland,  17  Johns.  (X.  Y.)  92 301 

Pantzar  v.  Mining  Co.,  99  X.  Y.  368,  2  X.  E.  24 117 

Pardee  v.  Drew,  25  Wend.  (X.  Y.)  459 231,  267 

Pardey  v.  Incorporated  Town  of  Mechanicsville,  101  Iowa,  266,  70  N.  W.  189  437 

Parish  v.  Town  of  Eden,  62  Wis.  272,  22  X.  W.  399 420-,  422 

Paris,  M.  &  S.  P.  Ry.  Co.  v.  Xesbitt,  11  Tex.  Civ.  App.  608,  33  S.  W.  280. .  355 

38  S.  W.  243 32 

Park  v.  Railroad  Co.,  85  Hun,  184,  32  X.  Y.  Supp.  482 99 

155  X.  Y.  215,  49  X.  E.  674 99 

Parker  v.  Adams,  12  Mete.  (Mass.)  415 332 

v.  Barnard,  135  Mass.  116 304 

v.  Canfield  (Mich.)  74  X.  W.  296 383 

v.  City  of  Cohoes,  10  Hun  (X.  Y.)  531 19 

v.  City  of  Lowell,  11  Gray  (Mass.)  353 429 

v.  Flagg,  26  Me.  181 216,  218 

v.  James.  4  Camp.  112 230 

v.  Railroad  Oo.,  34  Iowa,  399 342,  344 

69  Mo.  App.  54   202 

18  R.  I.  773,  30  Atl.  849 149 

30  Wis.  689    287 

v.  Sample,  11  Ind.  App.  698,  39  X.  E.  173 99 

Parkhurst  v.  Johnson,  50  Mich.  70,  15  X.  W.  107 106 

Parlin  &  Orendorff  Co.  v.  Dinfrouck,  65  111.  App.  174 93 

Parmalee  v.  Wilks,  22  Barb.  (X.  Y.)  539 237 

Parmelee  v.  Fischer,  22  111.  212 269 

v.  Lowitz,  74  111.  116 216 

v.  McXulty,  19  111.  556 216 

Parody  v.  Railway  Co.,  15  Fed.  205 120 

Parrish  v.  Railroad  Co.,  28  Fla.  251,  9  South.  696 146 

Parrot  v.  Wells,  Fargo  &  Co.,  15  Wall.  524 369 

Parrott  v.  Dearborn,  104  Mass.  104 382 


O60  CASES   CITED. 

Page 

Parsons  v.  Hardy,  14  Wend.  (N.  Y.)  215 216,  218,  227,  235,  236- 

v.  Monteath,  13  Barb.  (N.  Y.)  353 227 

v.  Railway  Co.,  94  Mo.  286,  6  S.  W.  464  41O 

113  N.  Y.  355,  21  N.  E.  145 17$ 

Partenheimer  v.  Van  Order,  20  Barb.  (N.  Y.)  479 107 

Paschal  v.  Owen,  77  Tex.  583,  14  S.  W.  203 420> 

Passenger  R.  Co.  v.  Young,  21  Ohio  St.  518 168 

Pastene  v.  Adams,  49  Cal.  87 26,  45,  304 

Patch  v.  City  of  Covington,  17  B.  Mon.  (Ky.)  722 450 

Patrick  v.  Pote,  117  Mass.  297 38= 

Patrie  v.  Railroad  Co.  (Idaho)  56  Pac.  82 345 

Patscheider  v.  Railway  Co.,  3  Exch.  Div.  153 289- 

Patten  v.  Railway  Co.,  32  Wis.  524,  36  Wis.  413 208 

v.  Wiggin,  51  Me.  594 '. 377,  378 

Patterson  v.  Clyde,  67  Pa.  St.  500 219 

v.  Hemenway,  148  Mass.  94,  19  N.  E.  15 42 

v.  Railroad  Co.,  4  Houst.  (Del.)  103 88 

76  Pa.  St.  389  120 

Patton  v.  Railway  Co.,  27  C.  C.  A.  287,  82  Fed.  979 87 

96  N.  C.  455,  1  S.  E.  863 149 

Patton's  Adm'rs  v.  Magrath,  Dud.  (S.  C.)  159 227 

Paule  v.  Mining  Co.,  80  Wis.  350,  50  N.  W.  189 122,  123 

Paulmier  v.  Railroad  Co.,  34  N.  J.  Law,  151 54 

Payne  v.  Partridge,  1  Show.  231 455 

v.  Railroad  Co.,  39  Iowa,  523 394 

129  Mo.  405,  31  S.  W.  885 37,  68 

136  Mo.  562,  38  S.  W.  308 338 

v.  Reese,  100  Pa.  St.  301 87,  91 

v.  Rogers,  2  H.  Bl.  350 .311,  312 

Peach  v.  City  of  Utica,  10  Hun  (N.  Y.)  477 75,  336 

Peake  v.  Buell,  90  Wis.  508,  63  N.  W.  1053 50 

Pearce  v.  The  Thomas  Newton,  41  Fed.  106 227 

Peard  v.  City  of  Mt.  Vernon,  158  N.  Y.  681,  52  N.  E.  1125 434 

Pearson  v.  Duane,  4  Wall.  605 184,  192,  194 

v.  Railroad  Co.,  45  Iowa,  497 342,  343 

Pease  v.  Railroad  Co.,  101  N.  Y.  367,  5  N.  E.  37 1S4 

Peavy  v.  Railroad  Co.,  81  Ga.  485,  8  S.  E.  70 183,  197 

Peck  v.  City  of  Michigan  City,  149  Ind.  670,  49  N.  E.  800 430 

v.  Hurlburt,  46  Barb.  (N.  Y.)  559 382 

v.  Hutchinson,  88  Iowa,  320,  55  N.  W.  511 376,  377 

v.  Martin,  17  Ind.  115 378 

v.  Railroad  Co.,  37  App.  Div.  110,  55  N.  Y.  Supp.  1121 358 

50  Conn.  379 61 

70  N.  Y.  587 195 

v.  Village  of  Batavia,  32  Barb.  634 4 

v.  Weeks,  34  Conn.  145 223 

Peet  v.  Railroad  Co.,  20  Wis.  594 233 

Pegram  v.  Stortz,  31  W.  Va.  220,  6  S.  E.  485 400 

Peik  v.  Railway  Co.,  94  U.  S.  164 201 


CASES  CITED.  561 

Page 

Feirce  v.  Oliver,  18  Ind.  App.  87,  47  N.  E.  485 86,  147 

v.  Partridge,  3  Mete.  (Mass.)  44 381 

v.  Radderman,  77  111.  App.  619 346 

Pelky  v.  Palmer,  109  Mich.  561,  67  N.  W.  561 377,  379 

Pelton  v.  Railroad  Co.,  54  N.  Y.  214 287 

v.  Schmidt,  104  Mich.  345,  62  N.  W.  552 49,  50,  306,  307 

Pemberton  Co.  v.  Railroad  Co.,  104  Mass.  144,  151 239 

Pendergast  v.  Express  Co.,  101  Mass.  120 294 

Peniston  v.  Railroad  Co.,  34  La.  Ann.  777. 208- 

Penn  v.  Railroad  Co.,  49  N.  Y.  204 262,  266 

Pennewill  v.  Cullen,  5  Har.  (Del.)  238 227 

Pennington  v.  Railroad  Co.,  62  Md.  95 199 

Pennington's  Ex'rs  v.  Yell,  11  Ark.  212 374,  375 

Pennoyer  v.  Willis  (Or.)  32  Pac.  57 374 

Pennsylvania  Canal  Co.  v.  Bentley,  66  Pa.  St.  30 330- 

Pennsylvania  Cent.  R.  Co.  v.  Schwarzenberger,  45  Pa.  St.  408 294 

Pennsylvania  Coal  Co.  v.  Nee  (Pa.  Sup.)  13  Atl.  841 410 

Pennsylvania  Co.  v.  Bray,  125  Ind.  229,  25  N.  E.  439 198 

v.  Davis,  4  Ind.  App.  51,  29  N.  E.  425 402 

v.  Ebaugh  (Ind.  Sup.)  53  N.  E.  763 109 

v.  Gallagher,  40  Ohio  St.  637 189,  211 

v.  Hoagland,  78  Iiid.  203 k 205 

v.  Keane,  143  111.  172,  32  N.  E.  260 412 

v.  Kenwood  Bridge  Co.,  170  111.  645,  49  N.  E.  215 232 

v.  Krick,  47  Ind.  368 323- 

v.  Lilly,  73  Ind.  252 406,  417 

v.  Liveright,  14  Ind.  App.  318,  41  N.  E.  350 289 

v.  Marion,  123  Ind.  415,  23  N.  E.  973 208 

v.  Miller,  35  Ohio  St.  541 271,  273 

v.  Morel,  40  Ohio  St.  338 335 

v.  Xewmeyer,  129  Ind.  401,  28  N.  E.  860 205 

v.  Roney,  89  Ind.  453 41 

v.  Roy,  102  U.  S.  451 29,  155,  203 

v.  Smith,  98  Ind.  42 S 

v.  Toorney,  91  Pa.  St.  256 169 

v.  Whitcomb,  111  Ind.  212,  12  N.  E.  380 133,  146 

T.  Whitlock,  99  Ind.  16. 16,  17,  19 

v.  Woodworth,  26  Ohio  St.  585 188,  189 

Pennsylvania  R.  Co.  \.  Adams,  55  Pa.  St.  499 410 

v.  Aspell,  23  Pa.  St.  147 205 

v.  Bantom,  54  Pa.  St.  495 406 

v.  Barnett,  59  Pa.  St.  259 324 

v.  Beale,  73  Pa.  St.  504 83,  330 

v.  Bell,  122  Pa.  St.  58,  15  Atl.  561 394 

v.  Butler,  57  Pa.  St.  335 407 

v.  Connell,  112  111.  295 181,  182,  186i 

v.  Coon,  m  Pa.  St.  430,  3  Atl.  234 323 

v.  Goodman,  62  Pa.  St.  329 408 

v.  Henderson,  51  Pa.  St.  315 208,  212,  405 

BAR.XEG.— 36 


562  CASES  CITED. 

Page 

Pennsylvania  R.  Co.  v.  James,  81  Pa.  St.  194 395 

v.  Keller,  07  Pa.  St.  300.. 410 

v.  Kerr,  62  Pa.  St.  333 10,  352 

v.  Kilgore,  32  Pa.  St.  292 181 

v.  Knight,  58  N.  J.  Law,  287,  33  Atl.  S45 274 

v.  Langdon,  92  Pa.  St.  21 196 

Y.  Lewis,  79  Pa.  St.  33 ^594,  395 

v.  Lilly,  73  Ind.  252 409 

v.  Matthews,  36  X.  J.  Law,  531 2 

v.  Miller,  87  Pa.  St.  395 219 

v.  Ogier,  35  Pa.  St.  60 328,  414 

v.  Parry,  55  N.  J.  Law,  551,  27  Atl.  914 200 

v.  Price,  96  Pa.  St.  256 188,  189 

v.  Railroad  Co.,  118  U.  S.  290,  6  Sup.  Ct.  1094 209 

v.  Rairordon,  119  Pa.  St.  577,  13  Atl.  324 218 

v.  Snyder,  55  Ohio  St.  342,  45  N.  E.  559 41 

v.  Spicker,  105  Pa.  St.  142 200 

v.  Vandever,  36  Pa.  St.  298 414 

v.  Vandiver,  42  Pa.  St.  3U5 169,  185 

v.  Weber,  76  Pa.  St.  157 84 

v.  Zebe,  33  Pa.  St.  318 394,  405,  406,  409,  410 

Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.)  15  Atl.  624 42,  407 

Penny  v.  Railway  Co.,  7  App.  Div.  595,  40  X.  Y.  Supp.  172 66 

34  App.  Div.  10,  53  X.  Y.  Supp.  1043 158 

People  v.  Bartels,  138  111.  322,  27  X.  E.  1091 388 

v.  Board,  74  X.  Y.  310 456 

v.  Butler,  74  Mich.  643,  42  X.  W.  273 386 

v.  Chappell,  27  Mich.  486 367 

v.  City  of  Albany,  11  Wend.  (N.  Y.)  539 450 

v.  Colby,    39    Mich.    436 386 

v.  Eastwood,  14  X.  Y.  562 7<3,  79 

v.  Gaynor,  33  App.  Div.  98,  53  X.  Y.  Supp.  86 79 

v.  Hurlbut,  24  Mich.  44 443 

v.  McDonald,  69  X.  Y.  362 443 

v.  Mahaney,  13  Mich.  481 443 

V.  Morris,  13  Wend.  (X.  Y.)  325 424 

v.  Roby,  52  Mich.  577,  18  X.  W.  363 '. 169 

Peoria  Bridge  Ass'n  v.  Loomis,  20  111.  235,  71  Am.  Dec.  263 5 

Peoria,  D.  &  E.  Ry.  Co.  v.  Hardwick,  53  111.  App.  161 108 

Pepper  v.  Railroad  Co.,  105  Cal.  389,  38  Pac.  974 337 

v.  Southern  Pac.  Co.,  105  Cal.  389,  38  Pac.  974 331 

Pereira  v.  Railroad  Co.,  66  Cal.  92,  4  Pac.  988 .234,  237,  293 

Perham  v.  Electric  Co.  (Or.)  53  Pac.  14 398 

Perigo  v.  Brewing  Co.  (Ind.  App.)  52  X.  E.  462 147 

Perionowsky  v.  Freeman,  4  Fost.  &  F.  977 378 

Perkins  v.  Mossrnan,  44  X.  J.  Law,  579 363 

V.  Railroad  Co.,  29  Me.  307 342 

47  Me.  573 294 

24  N.  Y.  96,  196,  197,  219 190,  204,  245 


CASES  CITED.  563 

Page 

Perley  v.  Railroad  Co.,  98  Mass.  414,  418,  419 352,  353 

Perry  T.  Railroad  Co.,  29  Kan.  420 .401-403 

v.  Ricketts,  55  111.  234 90 

v.  Rogers,  157  X.  Y.  251,  51  X.  E.  1021 133 

Pershing  v.  Railway  Co.,  71  Iowa,  501.  32  X.  W.  488 203 

Peru  &  I.  R.  Co.  v.  Bradshaw,  6  Ind.  140 400 

Peters  v.  Bowman,  115  Cal.  345,  47  Pac.  113,  598 49,  307 

v.  Rylands,  20  Pa.  St.  497 209 

Petersen  v.  Case,  21  Fed.  885 235 

Peterson  v.  Mining  Co.,  50  Iowa,  G73 147 

Petrie  v.  Railroad  Co.,  42  X.  J.  Law,  449 198 

29  S.'  C.  303,  7  S.  E.  515 406,  412 

Pettit  v.  Board,  87  Fed.  7G8 454 

Peverly  v.  City  of  Boston,  136  Mass.  366 39 

Pfister  v.  Railroad  Co.,  70  Cal.  169,  11  Pac.  686 272 

Phelps  v.'  City  of  Mankato.  23  Minn.  277 437 

v.  Xowlen,  72  X.  Y.  39 301 

v.  Railway  Co.,  19  C.  B.  (X.  S.)  321 271 

Phifer  v.  Railway  Co.,  89  X.  C.  311 239 

Philadelphia  City  Pass.  R.  Co.  v.  Hassard,  75  Pa.  St.  367 67,  206 

Philadelphia,  W.  &  B.  R.  Co.  v.  Anderson,  72  Md.  519,  20  Atl.  2 180 

v.  Hogeland,  66  Md.  149,  7  Atl.  105 57,  59 

T.  Keenan,   103  Pa.   St.   124 92 

v.  Kerr,  25  Md.  521 46 

v.  Larkin,  47  Md.  155 186 

v.  Lehman,   56  Md.   209 235,  237 

v.  McCormick,  124  Pa.  St.  427,  16  Atl.  848 180 

v.  State,  58  Md.  372 189,  211,  415 

v.  Stinger,  78  Pa.  St.  225 2 

v.  Towboat  Co.,  23  How.  209 46 

Philadelphia  &  R.  R.  Co.  v.  Boyer,  97  Pa.  St.  91 394 

v.  Derby,  14  How.  (U.  S.)  468,  486 170,  190,  213,  305 

v.  Edelstein  (Pa.  Sup.)  16  Atl.  847 180 

v.  Hendrickson,  80  Pa.  St  182 360 

v.  Huber,  128  Pa.  St.  63,  18  Atl.  334 117 

v.  Killips,  88  Pa.  St.  405 324 

v.  Long,  75  Pa.  St.  257 62-64,  71,  395 

v.  Peebles,  14  C.  C.  A.  555,  67  Fed.  591 330,  337 

v.  Schultz,  93  Pa.  St.  341 359 

v.  Spearen.  47  Pa.  St.  300 67,  327,  336 

T.  Yeiser,  8  Pa.  St.  366 353,  354 

v.  Yerger.  73  Pa.  St.  121 353,  358 

Philbrick  v.  City  of  Xiles,  25  Fed.  265 42 

Phillips  v.  Brigham,  26  Ga.  617 224 

v.  Earle,  8  Pick.  (Mass.)  182 230,  231,  280 

v.  Lamar,   27  Ga.   228 385 

v.  Michaels,  11  Ind.  App.  672,  39  X.  E.  669 119 

v.  Railroad  Co..  80  Hun,  404,  30  X.  Y.  Supp.  333 335 

111  Mich.  274.  69  X.  W.  496.  .  .  336 


564  CASES  CITED. 

Page- 
Phillips  v.  Railroad  Co.,  127  N.  Y.  657,  27  N.  E.  978 27 

32  S.  E.  (N.  C.)  388 177 

78  N.  C.  294 291,  294 

77  Wis.  349,  46  N.  W.  543 418 

Pickard  v.  Smith,  10  C.  B.  (N.  S.)  470 51,  31T 

Pickens  v.  Railroad  Co.,  104  N.  C.  312,  10  S.  E.  556 184 

Pickering  v.  Barkley,  Style,  132 230' 

v.  Orange,  2  111.  338,  492 364 

Pickett  v.  Railroad  Co.,  117  N.  C.  616,  23  S.  E.  264 339- 

Pickford  v.  Railway  Co.,  8  Mees.  &  W.  372 193- 

Piedmont  Mfg.  Co.  v.  Railroad  Co.,  19  S.  C.  353 292-294 

Pierce  v.  Conners,  20  Colo.  178,  37  Pac.  721 67 

v.  Gray,  63  111.  App.  158 181 

v.  Michel,  1  Mo.  App.  Rep'r,  74 20,  27 

v.  Southern  Pac.  Co.,  120  Cal.  156,  47  Pac.  874,  52  Pac.  302 240,  248 

v.  Steamship  Co.,  153  Mass.  87,  26  N.  E.  415 .38,  398 

v.  Whitcomb,  48  Vt   127 305 

Piette  v.  Brewing  Co.,  91  Mich.  605,  52  N.  W.  152 161 

Piggot  v.  Railroad  Co.,  3  C.  B.  229 356,  357 

Pindell  v.  Railway  Co.,  34  Mo.  App.  675,  683 288 

Pingree  v.  Railroad  Co.,  66  Mich.  143,  33  N.  W.  298 232,  233 

Pinkston  v.  Arrington,  98  Ala.  489,  13  South.  561 374,  375 

Pinney  v.  Railroad  Co.,  19  Minn.  251  (Gil.  211) 287, 

71  Mo.  App.  577 32,  336 

Piollet  v.  Simmers,  106  Pa.  St.  95 46 

Pitt  v.  Yalden,  4  Burrows,  2060 372 

Pittsburgh,  A.  &  M.  Pass.  Ry.  Co.  v.  Caldwell,  74  Pa.  St.  421 66,  73 

Pittsburgh,  A.  &  M.  Ry.  Co.  v.  Pearson,  72  Pa.  St.  169 62,  63,  395- 

Pittsburgh,  C.,  C.  &  St.  L.  Ry.  Co.  v.  Berryman,  11  Ind.  App.  640,  36 

N.  E.  728 198 

v.  Lewis  (Ky.)  38  S.  W.  482 339' 

v.  Russ,  6  C.  C.  A.  597,  57  Fed.  822 186 

v.  Shaw,  15  Ind.  App.  173,  43  N.  E.  957 338 

v.  Sheppard,  56  Ohio  St.  68,  46  N.  E.  61 240 

Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Adams,  105  Ind.  151,  5  N.  E.  187.  ..118,  123 

v.  Dewin,  86  111.  286 183 

v.  Hine,  25  Ohio  St.  629 420 

v.  Hollowell,  65  Ind.  188 229,  235 

v.  Jones,  86  Ind.  496 359 

v.  Kirk,  102  Ind.  399,  1  N.  E.  849 169 

v.  Krouse,  30  Ohio  St.  222 179 

v.  Martin  (Super.  Ct.  Gin.)  2  Ohio  N.  P.  353 178,  179 

v.  Morton,  61  Ind.  539 294 

v.  Nash,  43  Ind.  423,  426 288 

v.  Nelson,  51  Ind.  150 355 

V.  Smith,  26  Ohio  St.  124 348 

v.  Stuart,   71  Ind.   500 340 

v.  Thompson,  56  111.  138 203 

V.  Vandyne,  57  Ind.  576 175,  192. 


CASES  CITED.  565 

Page 

Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Hazen,  84  111.  36 229,  235 

v.  Hinds,  53  'Pa.  St.  512 192,  207 

v.  Krichbaum's  Adm'r,  24  Ohio  St.  119 88 

v.  Maurer,  21  Ohio  St.  421 174 

v.  Methven,  21  Ohio  St.  586 341 

v.  Powers,  74  111.  341 102 

v.  Vining's  Adm'r,  27  Ind.  513 62,  70 

Pittsburgh  Southern  Ry.  Co.  v.  Taylor,  104  Pa.  St.  306 10,  11 

Pittsburgh  &  C.  R.  Co.  v.  Pillow,  76  Pa.  St.  510 192,  207 

Pixley  v.  Clark,  32  Barb.  (X.  Y.)  268 319 

35  X.  Y.  520 317,  318 

Place  v.  Express  Co.,  2  Hilt.  (X.  Y.)  19 237 

Plaisted  v.  Navigation  Co.,  27  Me.  132 227 

Plank  v.  Railroad  Co.,  60  N.  Y.  607 93 

Platt  v.  Railway  Co.,  84  Iowa,  694,  51  N.  W.  254 42 

4  Thomp.  &  C.  406 179 

Platte  &  D.  Canal  &  Milling  Co.  v.  Do  well,  17  Colo.  376,  30  Pac.  68 73 

Plattsmouth  Water  Co.  v.  Smith  (Neb.)  78  X.  W.  275 317 

Platz  v.  City  of  Cohoes,  24  Hun  (X.  Y.)  101 61 

Pleasants  v.  Railroad  Co.,  121  X.  C.  492,  28  S.  E.  267 149 

Plessy  v.  Ferguson,  163  U.  S.  537,  16  Sup.  Ct.  1138 195 

Ploen  v.  Staff,  9  Mo.  App.  309 314,  317 

Ploof  v.  Traction  Co.,  69  Vt.  509,  41  Atl.  1017 71 

70  Vt.  509,  41  Atl.  1017 63 

Plummer  v.  Dill,  156  Mass.  426,  31  N.  E.  128 50 

v.  Ricker  (Tt.)  41  Atl.  1045 362 

Poeppers  v.  Railroad  Co.,  67  Mo.  715 353 

Pollard  v.  Railroad  Co.,  87  Me.  51,  32  Atl.  735 18 

Pollett  v.  Long,  56  X.  Y.  200 54 

Poineroy  v.  Donaldson,  5  Mo.  36 216 

v.  Railroad  Co.,  172  Mass.  92,  51  N.  E.  523 205 

Pontiac  v.  Carter,  32  Mich.  164 442 

Pool  v.  Railroad  Co.,  7  Utah,  303,  26  Pac.  654 407 

Poole  r.  Railroad  Co.,  89  Ga.  320,  15  S.  E.  321 205 

Poor  v.  Sears,  154  Mass.  539,  28  N.  E.  1046 56,  512 

Pope  r.  Boyle,  98  Mo.  527,  11  S.  W.  1010 312 

Porter  v.  Hildebrand,  14  Pa.  St.  129 269 

v.  Machine  Co.,  94  Tenn.  370,  29  S.  W.  227 97. 

v.  The  Xew  England,  17  Mo.  290 210 

v.  Railroad  Co.,  20  111.  407 288 

Porterfleld  v.  Humphreys,  8  Humph.  (Tenn.)  497 262 

Post  v.  Railroad  Co.,  14  Xeb.  110,  15  X.  W.  225 199 

Postal  Tel.  Cable  Co.  v.  Brantley,  107  Ala.  683,  18  South.  321 159,  168,  169 

v.  Hulsey,  115  Ala.  193,  22  South.  854 145 

v.  Zopfi,  19  C.  C.  A.  605,  73  Fed.  609,  93  Tenn.  369,  24  S.  W.  G33 19 

Potter  v.  Faulkner,  31  Law  J.  Q.  B.  30 129 

v.  Gas  Co.,  183  Pa.  St.  575,  39  Atl.  7 16 

v.  Railroad  Co.,  46  Iowa,  399 132,  147 

20Wis.  533..  «o 


566  CASES  CITED. 

Page 

Potter  v.  Railroad  Co.,  21  Wis.  372 405,  412 

22  Wis.  615  410,  414 

Potts  v.  Button,  8  Beav.  493 373- 

Potulni  v.  Sauoders,  37  Minn.  517,  35  N.  W.  379 168 

Poucher  v.  Railroad  Co.,  49  N.  Y.  263 178 

Powell  v.  Construction  Co.,  88  Tenn.  692,  13  S.  W.  691 161 

v.  Deveney,  3  Cush.  (Mass.)  300 26,  159,  352 

V.  Mills,  30  Miss.  231 21ft 

37  Miss.  691 234r 

v.  Railroad  Co.,  59  Mo.  App.  626 326 

32  Pa.  St.  414 233,  262 

Power  v.  Harlow,  57  Mich.  107,  23  N.  W.  606 71 

Powers  v.  City  of  Boston,  154  Mass.  60,  27  N.  E.  995 436- 

v.  Davenport,  7  Blackf.  (Ind.)  497 216,  224 

Prairie  State  Loan  &  Trust  Co.  v.  Doig,  70  111.  52 30O 

Prather  v.  City  of  Lexington,  13  B.  Mon.  (Ky.)  559 452 

Pratt  v.  Railway  Co.,  107  Iowa,  287,  77  N.  W.  10U4 25 

102  Mass.  557 294 

Prendergast  v.  Compton,  8  Car.  &  P.  454 183- 

Prendible  v.  Mfg.  Co.,  160  Mass.  131,  35  N.  E.  675 94 

Prentice  v.  Decker,  49  Barb.  (N.  Y.)  21 25S 

Prentiss  v.  City  of  Boston,  112  Mass.  43 .25,  446,  447 

Preston  v.  Railway  Co.,  98  Mich.  128,  57  N.  W.  31 94 

Pretty  v.  Bickmore,  L.  R.  8  C.  P.  401 313,  314 

Prevost  v.  Refrigerating  Co.,  185  Pa.  St.  617,  40  Atl.  88 140- 

Prewitt  v.  Railway  Co.,  134  Mo.  615,  36  S.  W.  667 328 

Price  v.  Powell,  3  N.  Y.  322 285 

v.  Railroad  Co.,  77  Mo.  508 152 

31  N.  J.  Law,  229 343 

v.  Simon  (N.  J.  Sup.)  40  Atl.  689 16O 

v.  Water  Co.,  58  Kan.  551,  50  Pac.  450 67,  306 

Prickett  v.  Anchor  Line,  13  Mo.  App.  436 289- 

Priest  v.  Nichols,  116  Mass.  401 39 

Priestley  v.  Fowler,  3  Mees.  &  W.  1  .  .* 124 

Pritchard  v.  Railroad  Co.,  7  Wis.  232 343 

Prize  Cases,  The,  2  Black,  635 229,  230 

Proctor  v.  Railroad  Co.,  72  N.  C.  579 344 

Proprietors  of  Locks  &  Canals  on  Merrimack  River  v.  City  of  Lowell,  7 

Gray  (Mass.)  223 428 

Prosser  v.  Railway  Co.,  17  Mont.  372,  43  Pac.  81 85 

Pruitt  v.  Railroad  Co.,  62  Mo.  527 222,  225,  236 

Prussak  v.  Hutton,  30  App.  Div.  66,  51  N.  Y.  Supp.  761 369 

Prybilski  v.  Railway  Co.,  98  Wis.  413,  74  N.  W.  117 : . .   151 

Puffer  v.  Orange,  122  Mass.  389 435 

Pullman  Car  Co.  v.  Gardner,  3  Penny.  (Pa.)  78 217,  278 

Pullman  Palace-Car  Co.  v.  Adams  (Ala.)  24  South.  921 85,  278 

v.  Freudenstein,  3  Colo.  App.  540,  34  Pac.  578 217,  277,  278 

v.  Gavin,  93  Tenn.  53,  23  S.  W.  70 278 

v.  Hall  (Ga.)  32  S.  E.  923 278 


CASES  CITED.  51)7 

Page 

Pullman  Palace-Car  Co.  v.  Laack,  143  111.  242,  32  X.  E.  285 151 

v.  Lowe,  28  Xeb.  239,  44  X.  W.  220 217 

v.  Pollock,  G9  Tex.  120,  5  S.  W.  814 217,  277,  278 

v.  Reed,  75  111.  125 186,  201 

v.  Smith,  73  111.  300 217,  278 

79  Tex.  4(58,  14  S.  W.  993 ISO 

Pumpelly  v.  Canal  Co.,  13  Wall.  1GG 428 

Purely  v.  Railroad  Co.,  87  Hun,  97,  33  X.  Y.  Supp.  952 333 

Purl  v.  Railway  Co.,  72  Mo.  1G8 75 

Purnell  v.  Minor,  49  Xeb.  555,  08  X.  W.  1)42 31 

v.  Railroad  Co.,  122  X.  C.  832,  29  S.  E.  953 324 

Puterbaugh  v.  Reasor,  9  Ohio  St.  484 55 

Putnam  v.  Railroad  Co.,  55  X.  Y.  108 183,  192.  197,  207 

Pye  v.  Faxon,  156  Mass.  471,  31  X.  E.  040 164 

Pyle  v.  Clark,  25  C.  C.  A.  190,  79  Fed.  744 59 

Pym  v.  Railway  Co.,  2  Best  &  S.  759,  10  Wkly.  Rop.  737,  31  Law.  J.  Q.  B. 

24.9;  4  Best  &  S.  396,  11  Wkly.  Rep.  922,  32  Law  J.  Q.  B.  377 408 

Pyne  v.  Railroad  Co.,  54  Iowa,  223,  6  X.  W.  281 147 

Q 

Quarman  v.  Burnett,  6  Mees.  &  W.  499 153,  174 

Quill  v.  Telephone  Co.,  13  Misc.  Rep.  435,  34  X.  Y.  Supp.  470 25 

Quimby  v.  Railroad  Co.,  150  Mass.  365,  368,  23  X.  E.  205 190 

v.  Vandt-rbilt,  37  X.  Y.  300 182,  197,  210,  291 

Quin  v.  Moore,  15  X.  Y.  432 403,  415 

Quincy  Coal  Co.  v.  Hood,  77  111.  68 403,  415,  416 

Quincy  Min.  Co.  v.  Kitts,  42  Mich.  34,  3  X.  W.  240 137 

Quinn  v.  Construction  Co.,  46  Fed.  506 156,  157 

v.  O'Keeffe,  9  App.  Div.  OS,  41  X.  Y.  Supp.  116 79 

v.  Power,  87  X.  Y.  535 154,  173 

v.  Railroad  Co.,  56  Conn.  44,  12  Atl.  97 394 

Quintana  v.  Refining  Co.,  14  Tex.  Civ.  App.  347,  37  S.  W.  369 91 

Quirk  v.  Elevator  Co.,  126  Mo.  279,  28  S.  W.  1080 39 

R 

Raben  v.  Railway  Co.,  73  Iowa,  579,  35  X.  W.  645,  74  Iowa,  732.  34  X.  W. 

021    180 

Racho  v.  City  of  Detroit,  90  Mich.  92,  51  X.  W.  360 399 

Radeliff's  Ex'rs  v.  Brooklyn,  4  X.  Y.  195 301,  438 

Radley  v.  Railroad  Co.,  L.  R.  9  Exch.  71 37 

Rafferty  v.  Buckman.  46  Iowa,  195 400 

Rahilly  v.  Railway  Co.,  66  Minn.  153,  68  X.  W.  853 199 

Railroad  Co.  v.  Androscoggin  Mills,  22  Wall.  594 292,  293 

v.  Brown,  17  Wall.  445,  450 195.  209 

v.  Jones,  95  tf.  S.  439 39 

v.  Leech,  41  Ohio  St.  388 109 


568  CASES  CITED. 

Page 

Railroad  Co.  v.  Marls,  1G  Kan.  333 287 

v.  Pratt,  22  Wall.  123 291 

v.  Reeves,  10  Wall.  176 221 

v.  Stout,  17  Wall.  657 69 

v.  Walker,  11  Heisk.  383 80 

Railsback  v.  Turnpike  Co.,  10  Ind.  App.  622,  38  N.  E.  221 105,  112 

Rains  v.  Railway  Co.,  71  Mo.  164 406,  409 

v.  Simpson,  50  Tex.  495 380 

Rajnowski  v.  Railroad  Co.,  74  Mich.  20,  41  N.  W.  847 409 

Ramsden  v.  Railroad  Co.,  104  Mass.  117 183 

Rand  v.  Transportation  Co.,  59  N.  H.  363 239 

Randall  v.  Railroad  Co.,  106  Mass.  276 435,  450 

109  U.  S.  478,  3  Sup.  Ct.  322 ., 116 

v.  Telegraph  Co.,  54  Wis.  140,  11  X.  W.  419 40 

Randolph  v.  Feist,  23  Misc.  Rep.  650,  52  N.  Y.  Supp.  109 316 

v.  O'Riordon,  155  Mass.  331,  29  N.  E.  583 59 

Rangeley's  Adm'r  v.  Railway  Co.,  95  Va.  715,  30  S.  E.  386 332 

Rankin  v.  Railroad  Co.,  55  Mo.  167 288 

Ranlett  v.  Blodgett,  17  N.  H.  298 381 

Ranney  v.  Railroad  Co.,  59  111.  App.  130 348 

Ransom  v.  Halcott,  18  Barb.  (N.  Y.)  56 384 

Rapho  Tp.  v.  Moore,  68  Pa.  St.  404 438,  456 

Rapson  v.  Cubitt,  9  Mees.  &  W.  710 166 

Rathbone  v.  Xeal,  4  La.  Ann.  563 235 

Rathbun  v.  Steamboat  Co.,  76  N.  Y.  376 284 

Ratte  v.  Dawson,  50  Minn.  450,  52  N.  W.  965 31,  306 

Rauch  v.  Lloyd,  31  Pa.  St.  358 68,  335 

Rawitzky  v.  Railroad  Co.,  40  La.  Ann.  47,  3  South.  387 199 

Rawson  v.  Holland,  59  N.  Y.  611 235.  287,  294 

v.  Railroad  Co.,  48  X.  Y.  212 197,  198,  258 

Ray  v.  City  of  Poplar  Bluff,  70  Mo.  App.  252 164,  435 

v.  Traction  Co.,  19  App.  Div.  530,  46  N.  Y.  Supp.  521 186 

Rayner  v.  Mitchell,  2  C.  P.  Div.  357 173 

Read  v.  Fire  District  (R.  I.)  40  Atl.  760 161 

v.  Morse,  34  Wis.  315 355 

v.  Xichols,  118  N.  Y.  224,  23  N.  E.  468 17,  18 

v.  Railroad  Co.,  60  Mo.  199 219,  22.", 

44  N.  J.  Law,  280 351 

v.  Spaulding,  30  N.  Y.  630 225 

Readhead  v.  Railroad  Co.,  L.  R.  2  Q.  B.  412,  4  Q.  B.  379 204 

Reading  Tp.  v.  Telfer,  57  Kan.  798,  48  Pac.  134 61 

Reardon  v.  Card  Co.,  51  X.  Y.  Super.  Ct  134 119 

v.  St.  Louis  Co.,  36  Mo.  555 456 

v.  Thompson,  149  Mass.  267,  21  X.  E.  369 49 

Reaves  v.  Waterman,  2  Speer  (S.  C.)  197 227 

Reber  v.  Tower,  11  Mo.  App.  199 117 

Redford  v.  Coggeshall,  19  R.  I.  313.  36  Atl.  89 449 

Redigan  v.  Railroad  Co.,  155  Mass.  44,  28  X.  E.  1133 49 

Redington  v.  Railway  Co.,  84  Hun,  231,  32  X.  Y.  Supp.  535 133 


CASES  CITED.  569 

Page 

"Redmond  v.  Steamboat  Co.,  46  N.  Y.  578 285,  286 

Red  River  Line  v.  Cheatham,  56  Fed.  248;   9  C.  C.  A.  124,  60  Fed.  517 109 

Heed  v.  City  of  Belfast,  20  Me.  246 425 

v.  City  of  Madison,  83  Wis.  171,  53  N.  W.  547 426 

v.  Darlington,   19  Iowa,  349 387 

v.  Express  Co.,  48  N.  Y.  462 292,  294 

v.  Railroad  Co.,  56  Barb.  (N.  Y.)  493 206 

100  Mich.  507,  59  N.  W.  144 180 

37  S.  C.  42,  16  S.  E.  289 397 

"  v.  Steamboat  Co.,  1  Marv.  193,  40  Atl.  955 219 

Heedie  v.  Railway  Co.  (1849)  4  Exch.  243 174 

Reese  v.  Mining  Co.,  15  Utah,  453,  49  Pac.  824 87 

v.  Railroad  Co.,  42  W.  Va.  333,  26  S.  E.  204 108 

Beeves  v.  French  (Ky.)  45  S.  W.  771 49,  307 

v.  Railroad  Co.,  92  Iowa,  32,  60  N.  W.  243 337 

30  Pa.  St.  454 350 

Keg.  v.  Bucknall,  2  Ld.  Raym.  804 311 

v.  Longbottom,  3  Cox,  Or.  Cas.  439 76 

v.  Watts,  1  Salk.  357 311 

Hegan  v.  Express  Co.,  49  La.  Ann.  1579,  22  South.  835 266 

v.  Railway  Co.,  51  Wis.  599,  8  N.  W.  292 415,  416 

Hehm  v.  Railroad  Co.,  164  Pa.  St.  91,  30  Atl.  356 128,  140 

Reilly  v.  City  of  Philadelphia,  60  Pa.  St.  467 441 

v.  Railroad  Co.,  94  Mo.  600,  7  S.  W.  407 395 

Heiner  v.  Jones  (Sup.)  56  X.  Y.  Supp.  423 317 

Tleining  v.  Railway  Co.,  128  N.  Y.  157,  165,  28  N.  E.  642 438 

R.  E.  Lee,  The,  2  Abb.  (U.  S.)  49,  Fed.  Cas.  No.  11,690 277 

Relf  v.  Rapp,  3  Watts  &  S.  (Pa.)  21 230 

Helyea  v.  Railroad  Co.,  112  Mo.  86.  20  S.  W.  480 148 

Renwick  v.  Railroad  Co..  36  N.  Y.  133 75 

Heock  v.  Mayor,  etc.,  33  N.  J.  Law,  129 449 

Republican  Val.  R.  Co.  v.  Fink,  18  Xeb.  89,  24  X.  W.  691 24 

Hequa  v.  City  of  Rochester,  45  N.  Y.  129 426 

Hespublica  v.  Sparhawk,  1  Ball.  (Pa.)  357 9,  452 

Reumping  v.  Wharton  (Xeb.)  76  X.  W.  1076 373 

Hex  v.  Inhabitants,  2  W.  Bl.  685 455 

v.  Long,  4  Car.  &  P.  398-423 378 

v.  Walker,  1  Car.  &  P.  320 76 

v.  Watts.  2  Esp.  675 320 

•Rexter  v.  Starin,  73  X.  Y.  601 43 

.Reynolds  v.  Board,  33  App.  Div.  88,  53  X.  Y.  Supp.  75 443 

v.  Clarke,  2  Ld.  Raym.  1399 303 

v.  Graves,  3  Wis.  416 376 

v.  Hindman,  32  Iowa,  146 52 

V.  Railroad  Co.,  16  C.  C.  A.  435,  69  Fed.  808 325 

43  X.   H.   580 297,  298 

58  X.  Y.  248 88,  340 

2  Rose.  X.  P.  Ev.  735 189 

64  Vt.  66,  24  Atl.  134 106 


570  CASES  CITED. 

Ehines'  Adm'rs  v.  Evans,  G6  Pa.  St.  192 373 

Rhyner  v.  City  of  Menasha,  97  Wis.  523,  73  N.  W.  41 77,  85 

Rice  v.  Hart,  118  Mass.  201 2SS 

v.  Railroad  Co.  (La.)  24  South.  791 G5 

63   Mo.   314 212,  251 

Rice  &  Bullen  Malting  Co.  v.  Paulsen,  51  111.  App.  123 9O 

Rich  v.  Basterfield,  4  C.  B.  783 313,  314 

Richards  v.  Connell,  45  Xeb.  517,  63  N.  W.  915 30(5 

v.  Railroad  Co.,  20  111.  404 288 

v.  Westcott,  2  Bosw.  (X.  Y.)  589 '  216 

v.  Willard,  176  Pa.  St.  181,  35  Atl.  114 379 

Richardson  r.  The  Charles  P.  Chouteau,  37  Fed.  532. 292 

v.  Goddard,  23  How.  28,  39 285,  286 

v.  Railroad  Co.,  45  N.  Y.  846 326 

8  Rich.  Law  (S.  C.)  120 79 

61  Wis.  596,  21  N.  W.  49 266 

Richberger  v.  Express  Co.,  73  Miss.  161,  18  South.  922 170 

Richmond  v.  Railway  Co.,  87  Mich.  374,  49  N.  W.  621 410,  411 

v.  Steamboat  Co.,  87  X.  Y.  240 284 

Richmond  City  Ry.  Co.  v.  Scott,  86  Va.  902,  11  S.  E.  404 180 

Richmond  Locomotive  Works  v.  Ford,  94  Va.  627,  27  S.  E.  509 105,  ISO- 
Richmond  Railway  &  Electric  Co.  v.  Bowles,  92  Va.  738,  24  S.  E.  388 204 

Richmond  &  D.  R.  Co.  v.  Dickey,  90  Ga.  491,  16  S.  E.  212 94 

v.  Finley,  12  C.  C.  A.  595,  63  Fed.  228 Ill,  123,  145 

v.  George,  88  Va.  223,  13  S.  E.  429 .151 

v.  Medley,  75  Va.  499 '. 355,  359 

v.  Xorment,  84  Va.  167,  4  S.  E.  211 150 

v.  Smith,  92  Ala.  237,  9  South.  223 180 

v.  Vance,  93  Ala.  144,  9  South.  574 6 

v.  White,  88  Ga.  805,  15  S.  E.  802 23,  222 

v.  Williams,  88  Ga.  16,  14  S.  E.  120 102: 

86  Va.  165,  9  S.  E.  990 150 

Richmond  &  M.  R.  Co.  v.  Moore's  Adm'r,  94  Va.  493,  27  S.  E.  70 5O 

Ricker  v.  Freeman,  50  N.  H.  420 25,  26 

Rickerson  Roller-Mill  Co.  v.  Grand  Rapids  &  I.  R.  Co.,  67  Mich.  110,  34  X. 

W.  269 294 

Riddle  v.  Proprietors  of  Locks,  7  Mass.  169 454-^56 

Rider  v.  White,  65  X.  Y.  54 365 

Rigony  v.  Schuylkill  Co.,  103  Pa.  St.  382 456 

Riley  v.  Home,  5  Bing.  217 221 

v.  Railroad  Co.,  135  Mass.  292 398 

v.  Transit  Co.,  10  Utah.  428,  37  Pac.  681 64 

Ritchey  v.  West,  23  111.  385 377 

Ritchie  v.  Waller,  63  Conn.  155,  28  Atl.  29 173 

Ritger  v.  City  of  Milwaukee,  99  Wis.  190,  74  X.  W.  815 60- 

Ritz  v.   City  of  Wheeling  (W.  Va.)  31  S.  E.  993,  43  Lawy.  Rep.  Ann. 

148  49,  3CM> 

Ritzman  v.  Railroad  Co.,  187  Pa.  St.  337,  40  Atl.  875 330 

Rivers  v.  Council,  65  Ga.  376 449> 


.        CASES   CITED.  571 

Page 

River  Wear  Com'rs  v.  Adamson,  2  App.  Cas.  743 2& 

Rixford  v.  Smith,  52  N.  H.  355 231,  262,  266- 

Roach  v.  Mining  Co.,  7  Sawy.  224,  7  Fed.  698 397 

v.  Railroad  Co.,  93  Ga.  785,  21  S.  E.  67 57,  60 

Robbins  v.  Atkins,  168  Mass.  45,  46  N.  E.  425 316- 

v.  City  of  Chicago,  4  Wall.  657 447 

v.  Jones,  15  C.  B.  (N.  S.)  221,  240 314,  316,  317 

Roberts  v.  City  of  Chicago,  26  111.  249 439- 

.v.  City  of  Detroit,  102  Mich.  64,  60  N.  W.  450 426 

v.  Koehler,  30  Fed.  94 200,  267 

v.  Riley,  15  La.  Ann.  103 238 

v.  Turner,  12  Johns.  (N.  Y.)  232 215 

Robertson  v.  Miller,  40  Conn.  40 318 

v.  Railroad  Co.,  22  Barb.  (N.  Y.)  91 196- 

Robinson  v.  Brennan,  90  N.  Y.  208 384 

v.  City  of  Evansville,  87  Ind.  334 449 

v.  Cone,  22  Vt.  213,  224 68,  71,  73 

v.  McXeill,  18  Wash.  163,  51  Pac.  355 158 

v.  Mfg.  Co.,  143  Mass.  528,  10  N.  E.  314 152- 

v.  Navigation  Co.,  20  C.  C.  A.  86,  73  Fed.  883 60- 

v.  Pioche,  5  Cal.  460,  461 77 

v.  Railroad  Co.,  48  Cal.  409 85,  15* 

87  Me.  387,  32  Atl.  994 197 

157  Mass.  224,  32  N.  E.  1 205 

66    N.    Y.    11 f 59- 

94  Wis.  345,  68  N.  W.  961 174 

v.  Rockland,  T.  &  C.  St.  Ry.  Co.,  87  Me.  387,  32  Atl.  994 183: 

v.  Southern  Pac.  Co.,  105  Cal.  526,  38  Pac.  94,  722 200 

v.  Transportation  Co.,  45  Iowa,  470 292,  293- 

v.  Webb,  11  Bush  (Ky.)  464 161 

Rochester  White  Lead  Co.  v.  City  of  Rochester,  3  N.  Y.  463 426,  429- 

Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  Delaney,  82  111.  198 409- 

Rodgers  v.  Railroad  Co.,  67  Cal.  607,  8  Pac.  377 24 

150  Ind.  397,  49  N.  E.  453 324 

Rodney  v:  Railroad  Co.,  127  Mo.  676,  28  S.  W.  887 148- 

Rodrian  v.  Railroad  Co.,  125  N.  Y.  526,  26  N.  E.  741 399- 

Roe  v.  Crimmins,  10  Misc.  Rep.  711,  31  N.  Y.  Supp.  807 43- 

Roeder  v.  Ormsby,  13  Abb.  Prac.  (N.  Y.)  334,  22  How.  Prac.  (N.  Y.)  270. ..  406- 

Rogers  v.  City  of  Bloomington  (Ind.  App.)  52  N.  E.  242 434 

v.  Leyden,  127  Ind.  50-53,  26  N.  E.  210.  . . '. 151 

v.  McDowell,  134  Pa.  St  424,  21  Atl.  166 382 

v.  Overton,  87  Ind.  411 85 

v.  Railroad  Co.,  1  Allen  (Mass.)  16 345 

v.  Steamboat  Co.,  86  Me.  261,  29  Atl.  1069 177,  178,  191 

v.  Wheeler,  2  Lans.  (N.  Y.)  486 216 

43  X.   Y.  598 216 

52  N.  Y.  262 279" 

Rogers  Locomotive  &  Machine  Works  v.  Hand,  50  X.  J.  Law,  464,  14  Atl. 

766    .  .  148- 


572  CASES  CITED.     . 

Page 

Rogers  Locomotive  &  Machine  Works  v.  Railroad  Co.,  20  N.  J.  Eq.  379 216 

Rogstad  v.  Railway  Co.,  31  Minn.  208,  17  N.  W.  287 211 

Roll  v.  Railway  Co.,  15  Hun,  496 41 

Rollings  v.  Levering,  18  App.  Div.  223,  45  N.  Y.  Supp.  942 90 

Rome  R.  Co.  v.  Sullivan,  14  Ga.  277,  282 288 

25  Ga.  228 295 

v.  Wimberly,  75  Ga,  316 289 

Romick  v.  Railway  Co.,  62  Iowa,  167,  17  N.  W.  458 324 

Rommel  v.  Schambacher,  120  Pa.  St.  579,  11  Atl.  779 78,  171 

Rood  v.  Railroad  Co.,  18  Barb.  (N.  Y.)  80 354 

Rooney  v.  Carson,  161  Pa.  St.  26,  28  Atl.  996 122 

v.  Cordage  Co.,  161  Mass.  153,  36  N.  E.  789 92 

Roose  v.  Perkins,  9  Neb.  304,  2  N.  W.  715 400 

Root  v.  Railroad  Co.,  83  Hun,  111,  31  N.  Y.  Supp.  357 223 

45  N.  Y.  524,  532 216,  291-293 

v.  Wagner,  30  N.  Y.  9 381 

Rose  v.  Railroad  Co.,  39  Iowa,  246 212,  414 

58  N.  Y.  217   103 

106  N.  C.  168,  11  S.  E.  526 198 

Rosenbaum  v.  Railroad  Co.,  38  Minn.  173,  36  N.  W.  447 171 

v.  Shoffner,  98  Tenn.  624,  40  S.  W.  1086 14,  309 

Hosenfeld  v.  Railway  Co.,  103  Ind.  121,  2  N.  E.  344 238,  247,  248,  253 

Rosenfleld  v.  Express  Co.,  1  Woods,  131,  Fed.  Gas.  No.  12,060 297 

Uosenthal  v.  Davenport,  38  Minn.  543,  38  N.  W.  618 388 

Ross  v.  Railroad  Co.,  44  Fed.  44 410 

5  Hun  (N.  Y.)  488 190 

4  Mo.  App.  583 289 

49  Vt.  364 231,  232 

Ross  Case,  112  U.  S.  377,  5  Sup.  Ct.  184 148 

Rossell  v.  Cottom,  31  Pa.  St.  525 362 

Rossire  v.  City  of  Boston,  4  Allen  (Mass.)  57 444 

Roswell  v.  Prior,  12  Mod.  635 161,  314 

Roth  v.  Depot  Co.,  13  Wash.  525,  43  Pac.  641 71,  328 

v.  Railroad  Co.,  34  N.  Y.  548 283,  287,  289 

Rothe  v.  Railroad  Co.,  21  Wis.  256 82,  330 

Rothenberger  v.  Milling  Co.,  57  Minn.  461,  59  N.  W.  531 121 

Rothschild  v.  Railroad  Co.,  69  111.  164 288 

Roulston  v.  Clark,  3  E.  D.  Smith  (N.  Y.)  366 310 

Rounds  v.  City  of  Bangor,  46  Me.  541 443 

v.  Railroad  Co.,  64  N.  Y.  129 169 

Houser  v.  Railway  Co.,  97  Mich.  565,  56  N.  W.  937 199 

Roux  v.  Lumber  Co.,  94  Mich.  607,  54  N.  W.  492 '. 137 

Rowe  v.  City  of  Portsmouth,  56  N.  H.  291 425 

Rowell  v.  Railroad  Co.,  64  Conn.  376,  30  Atl.  131 42 

57  N.  H.  132 353 

Rowen  v.  Railroad  Co.,  59  Conn.  364,  21  Atl.  1073 36 

Rowland  v.  Cannon,  35  Ga.  105 394 

Rowley  v.  Bigelow,  12  Pick.  (Mass.)  307,  313 298 

v.  Home,  3  Bing.   2 256 


CASES  CITED.  57 & 

Page 
Royce  v.  City  of  Salt  Lake  City,  15  Utah,  401,  49  Pac.  290 444 

v.  Guggenheim,  106  Mass.  201 315- 

Rozell  v.  City  of  Anderson,  91  Ind.  591 429- 

Rudder  v.  Koopman,  116  Ala.  332,  22  South.  601 369 

Ruddock  y.  Lowe,  4  Fost.  &  F.  519,  521 378- 

Rudgeair  v.  Traction  Co.,  ISO  Pa.  St.  333,  36  Atl.  859 158. 

Ruffner  v.  Cincinnati,  H.  &  D.  R.  Co.,  34  Ohio  St.  96 358 

Ruggles  v.  Illinois,  108  U.  S.  526,  2  Sup.  Ct  832 201 

v.  Inhabitants,  11  Cush.  (Mass.)  433 452 

Rummell  v.  Dilworth,  111  Pa.  St.  343,  2  Atl.  355 106,  123- 

Runyan  v.  Railroad  Co.,  61  X.  J.  Law,  537,  41  Atl.  367 277 

Ruppel  v.  Railroad  Co.,  167  Pa.  St.  166,  31  Atl.  478 234,  235,  249- 

Russell  v.  Mayor,  etc.,  2  Denio  (X.  Y.)  461 452 

v.  Men  of  Devon,  2  Term  R.  667 454,  455- 

v.  Railroad  Co.,  32  Minn.  230,  20  X.  W.  147 Ill 

17  x.  r.  134 i9a 

v.  Shenton,  3  Q.  B.  449 311,  3ia 

v.  Sunbury,  37  Ohio  St.  372 402 

v.  Tillotson,  140  Mass.  201,  4  X.  E.  281. . .'. 121 

Russell  Mfg.  Co.  v.  New  Haven  Steamboat  Co.,  50  N.  Y.  121 285,  286- 

Ruter  v.  Foy,  46  Iowa,  132 36 

Rutledge  v.  Railway  Co.,  123  Mo.  121,  24  S.  W.  1053;    27  S.  W.  327 103 

Ryan  v.  Ardis,  190  Pa.  St.  66,  42  Atl.  372 87 

v.  Armour,  166  111.  568,  47  X.  E.  60 .93,  105,  10T 

v.  Bagley,  50  Mich.  179,  180,  15  X.  W.  72 137 

v.  Boiler  Works,  68  Mo.  App.  148 156: 

v.  Fowler,  24  N.  Y.  410 89,  117 

v.  Railroad  Co.,  37  Hun  (X.  Y.)  186 6& 

35  X.  Y.  210 14,  16,  352 

23  Pa.  St.  384 19tt 

65  Tex.  13 220 

v.  Tarbox,  135  Mass.  207 106- 

Ryder  v.  Kinsey,  62  Minn.  85,  64  N.  W.  94 303 

Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330 2T 


S 

Sadowski  v.  Car  Co.,  84  Mich.  100,  47  X.  W.  598 1ST 

Sager  v.  Railroad  Co.,  31  Me.  228 212,  222 

St.  Anthony  Falls  Water-Power  Co.  v.  Eastman,  20  Minn.  277  (Gil.  249).  .82,  86- 

St.  Clair  v.  Railroad  Co.,  80  Iowa,  3O4,  45  X.  W.  570 235 

St.  John  v.  Express  Co.,  1  Woods,  612,  Fed.  Cas.  No.  12,228 231,  293 

St.  Joseph  &  G.  I.  R.  Co.  v.  Hedge,  44  Xeb.  448,  62  X.  W.  891 18 

St.  Joseph  &  W.  R.  Co.  v.  Wheeler,  35  Kan.  185,  10  Pac.  461 176,  187,  188- 

St.  Louis,  A.  &  T.  H.  R.  Co.  v.  Biggs,  53  111.  App.  550 135 

y.  Manly,  58  111.  300 340 

v.  Montgomery,  39  111.  335 279 

T.  Stapp,  53  111.  App.  600 34a 


•574  CASES  CITED. 

Page 

St  Louis,  A.  &  T.  Ry.  Co.  v.  Hardy,  55  Ark.  134,  17  S.  W.  711 191 

v.  Johnston,  78  Tex.  536,  15  S.  W.  104 407 

v.  Mackie,  71  Tex.  491,  9  S.  W.  451 198 

v.  Torrey,  58  Ark.  217,  24  S.  W.  244 105 

•St.  Louis  Bridge  Co.  v.  Miller,  138  111.  465,  28  X.  E.  1091 27 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Bland  (Tex.  Civ.  App.)  34  S.  W.  675 225 

v.  Freeman,  36  Ark.  41 395,  410 

v.  Gaines,  46  Ark.  555 146 

v.  Heath,  41  Ark.  476 235 

v.  Hopkins,  54  Ark.  209,  15  S.  W.  610 23 

v.  Jones  (Tex.  Civ.  App.)  29  S.  W.  695 236 

v.  Knight,  122  U.  S.  79,  7  Sup.  Ct.  1132 279 

v.  Leigh,  45  Ark.  368 193 

v.  Maddry,  57  Ark.  306,  21  S.  W.  472 18,  408 

V.  Murphy,  60  Ark.  333,  30  S.  W.  419 279 

v.  Needham,  3  C.  C.  A.  129,  52  Fed.  371 402 

11  C.  C.  A.  56,  63  Fed.  107 145 

v.  Rexroad  (Ark.)  26  S.  W%  1037 70 

v.  Rice,  51  Ark.  467,  11  S.  W.  699 145 

v.  Rickman  (Ark.)  45  S.  W.  56 146 

St.  Louis  Ins.  Co.  v.  Railroad  Co.,  104  U.  S.  146 294 

St.  Louis,  K.  C.  &  N.  Ry.  Co.  v.  Piper,  13  Kan.  376,  505 238,  292 

St.  Louis  S.  W.  Ry.  Co.  v.  Bishop,  14  Tex.  Civ.  App.  504,  37  S.  W.  764 51 

v.  Franklin  (Tex.  Civ.  App.)  44  S.  W.  701 177 

v.  Griffith,  12  Tex.  Civ.  App.  631,  35  S.  W.  741 177,  178 

v.  Henson,  61  Ark.  302,  32  S.  W.  1079 146 

v.  Jagernian,  59  Ark.  98,  26  S.  W.  591 91 

v.  Knight  (Tex.  Civ.  App.)  49  S.  W.  250 354 

v.  McCullough  (Tex.  Civ.  App.)  45  S.  W.  324 202 

v.  Milk  Co.,  74  111.  App.  619 290 

v.  Nelson  (Tex.  Civ.  App.)  44  S.  W.  179 191 

v.  Rice,  9  Tex.  Civ.  App.  509,  29  S.  W.  525 39 

v.  Russell,  64  Ark.  236,  41  S.  W.  807 344 

v.  White  (Tex.  Civ.  App.)  34  S.  W.  1042 187 

St.  Louis,  V.  &  T.  R.  Co.  v.  Bell,  81  111.  76 69 

St.  Louis  &  C.  R.  Co.  v.  Hardway,  17  111.  App.  321 289 

St.  Louis  &  S.  P:.  R.  Co.  v.  Dorman,  72  111.  504 262 

v.  Smuck,  49  Ind.  302 253 

St.  Louis  &  S.  F.  Ry.  Co.  v.  Christian,  8  Tex.  Civ.  App.  246,  27  S.  W.  932 ...     63 

v.  Gill,  54  Ark.  101,  15  S.  W.  18 201 

v.  Hoover,  3  Kan.  App.  577,  43  Pac.  854 354 

v.  Sherlock,  59  Kan.  23,  51  Pac.  899 249 

v.  Stevens,  3  Kan.  App.  176,  43  Pac.  434 80,  359 

v.  Traweok,  84  Tex.  65,  19  S.  W.  370 42 

v.  Tribbey,  6  Kan.  App.  467,  50  Pac.  458 239,  266 

v.  Weaver,  35  Kan.  412.  11  Pac.  408 147 

St  Mary's  Woolen  Mfg.  Co.  v.  Glycerine  Co.,  14  Ohio  Cir.  Ct.  522,  7  Ohio 

Dec.  582 369 

St  Peter  v.  Denison,  58  N.  Y.  416. .  .  438 


CASES  CITED.  575 

Page 

Salem-Bedford  Stone  Co.  v.  O'Brien,  12  Ind.  App.  217,  40  N.  E.  430 39,  44 

Sales  v.  Stage  Co.,  4  Iowa,  547 216 

Salisbury  v.  Hercheuroder,  10G  Mass.  458 21,  23,  303 

v.  Washington  Co.,  22  Misc.  Key.  41,  48  N.  Y.  Supp.  122 453 

Salmon  Falls  Mfg.  Co.  v.  The  Tangier,  1  Cliff.  396,  Fed.  Cas.  No.  12,266. ..  284^ 

Salter  v.  Railroad  Co.,  88  N.  Y.  42 86 

Salters  v.  Canal  Co.,  3  Hun  (N.  Y.)  338 92 

Saltonstall  v.  Stockton,  Taney,  11,  Fed.  Cas.  No.  12,271 191 

Salzer  v.  City  of  Milwaukee,  97  Wis.  471,  73  N.  W.  20 434. 

Samullian  v.  Machine  Co.,  168  Mass.  12,  46  N.  E.  98 157 

Sau  Antonio  &  A.  P.  Ry.  Co.  v.  Adams,  6  Tex.  Civ.  App.  102,  24  S.  W.  839..  188 

v.  Baruett,  12  Tex.  Civ.  App.  321,  34  S.  W.  139 252 

v.  Bennett,  76  Tex.  151,  13  S.  W.  319 413 

v.  Bergsland,  12  Tex.  Civ.  App.  97,  34  S.  W.  155 335 

v.  Bowles  (Tex.  Civ.  App.)  30  S.  W.  89 150 

v.  Brooking  (Tex.  Civ.  App.)  51  S.  W.  537 93 

v.  Harding,  11  Tex.  Civ.  App.  497,  33  S.  W.  373 150 

v.  Jazo  (Tex.  Civ.  App.)  25  S.  W.  712 67 

v.  Keller,  11  Tex.  Civ.  App.  569,  32  S.  W.  847 149 

v.  Lynch,  8  Tex.  Civ.  App.  513,  28  S.  W.  252 187 

v.  McDonald  (Tex.  Civ.  App.)  31  S.  W.  72 149 

v.  Newman  (Tex.  Civ.  App.)  43  S.  W.  915 258 

v.  Peterson  (Tex.  Civ.  App.)  49  S.  W.  924 31 

v.  Reynolds  (Tex.  Civ.  App.)  30  S.  W.  846 150 

v.  Robinson,  79  Tex.  608,  15  S.  W.  584 '.205 

v.  Taylor  (Tex.  Civ.  App.)  35  S.  W.  855 150 

Sanders  v.  Young,  1  Head  (Tenn.)  219 216 

{Sanderson  v.  Frazier,  8  Colo.  79,  5  Pac.  632 84 

Sandham  v.  Railroad  Co..  38  Iowa,  90 30 

Sanford  v.  Oil  Co.,  118  N.  Y.  571,  24.  N.  E.  313 128 

v.  Railroad  Co.,  23  N.  Y.  343 35,  169,  185,  186 

2  Phila.  (Pa.)  107 191 

Sanner  v.  Railway  Co.  (Tex.  Civ.  App.)  43  S.  W.  533 150 

Santee,  The,  2  Ben.  519,  Fed.  Cas.  No.  12,328 251 

Sarch  v.  Blackburn,  4  Car.  &  P.  297 362,  365 

Sauerborn  v.  Railroad  Co.,  69  Hun,  429,  23  N.  Y.  Supp.  478 329 

Saulsbury  v.  Village  of  Ithaca,  94  N.  Y.  27 432 

Saunders  v.  City  of  Boston,  167  Mass.  595,  46  N.  E.  98 437 

v.  Perkins,  140  Pa.  St.  102,  21  Ati.  257 385 

v.  Southern  Pac.  Co.,  13  Utah,  275,  44  Pac.  932 191 

Sauter  v.  Railroad  Co.,  66  N.  Y.  50 54,  413 

Savacool  v.  Boughton,  5  Wend.  (N.  Y.)  170 382 

Savage  v.  City  of  Bangor,  40  Me.  176 434 

Savannah,  F.  &  W.  Ry.  Co.  v.  Guano  Co.,  103  Ga.  590,  30  S.  W.  555 

23,  222,  228 

v.  Harris,  26  Fla.  14.8,  7  South.  544 294 

v.  Pritchard,  77  Ga,  412,  1  S.  E.  261 23i 

v.  Quo,  103  Ga.  125,  29  S.  E.  607 172 

Savannah,  G.  &  N.  A.  R.  Co.  v.  Wilcox,  48  Ga.  432 233 


576  CASES  CITED. 

Page 

Savannah,  S.  &  S.  R.  Co.  v.  Bonaud,  58  Ga.  180. . 21O 

Savannah  &  W.  R.  Co.  v.  Phillips,  90  Ga.  829,  17  S.  E.  82 161,  165 

Sawyer  v.  Corse,  17  Grat.  (Va.)  230 433- 

v.  Dulany,  30  Tex.  479 205 

v.  Railroad  Co.,  37  Mo.  24 203- 

27  Vt.  370 129- 

v.  Sauer,  10  Kan.  466 SO 

Sayward  v.  Carlson,  1  Wash.  St.  29,  23  Pac.  830 150- 

Scales  v.  Chattahoochee  Co.,  41  Ga.  225 456- 

Scanlan  v.  City  of  Watertown,  14  App.  Div.  1,  43  X.  Y.  Supp.  618 432. 

Scanlon  v.  Railroad  Co.,  147  Mass.  484,  18  N.  E.  209 117 

Scarborough  v.  Railway  Co.,  94  Ala.  497,  10  South.  316 161 

Schacherl  v.  Railway  Co.,  42  Minn.  42,  43  N.  W.  837 74 

Schanda  v.  Sulzberger,  7  App.  Div.  221,  40  N.  Y.  Supp.  116 315 

Schattner  v.  City  of  Kansas,  53  Mo.  162 449- 

Schaub  v.  Railroad  Co.,  106  Mo.  74,  16  S.  W.  924 405,  407 

Schauf's  Adm'r  v.  City  of  Paducah  (Ky.)  50  S.  W.  42 440- 

Scheffer  v.  Railroad  Co.,  105  U.  S.  249 11,  16,  18,  19,  399 

Schemer  v.  Railway  Co.,  32  Minn.  125,  19  N.  W.  656 400* 

32  Minn.  518,  21  N.  W.  711 410,  413- 

Schell  v.  Bank,  14  Minn.  43  (Gil.  34) 302 

Schepers  v.  Railroad  Co.,  126  Mo.  665,  29  S.  W.  712 177 

Scherer  v.  Mfg.  Co.,  86  Hun,  37,  33  N.  Y.  Supp.  205 135 

Scheu  v.  Benedict,  116  N.  Y.  510,  22  N.  E.  1073 285 

Schieffelin  v.  Harvey,  6  Johns.  (N.  Y.)  170 229- 

Schierhold  v.  Railroad  Co.,  40  Cal.  447 76 

Schlereth  v.  Railway  Co.,  115  Mo.  87,  21  S.  W.  1110 148 

Schliermann  v.  Typewriter  Co.,  11  Misc.  Rep.  546,  32  N.  Y.  Supp.  748 119- 

Schmidt  v.  Railroad  Co.,  26  App.  Div.  391,  49  X.  Y.  Supp.  777 205 

23  Wis.  186 67 

90  Wis.  504,  63  N.  W.  1057 280 

v.  Woodenware  Co.,  99  Wis.  300,  74  X.  W.  797 404 

Schmitt  v.  Drouet,  42  La.  Ann.  1064,  8  South.  396 386 

Schneekloth  v.  Railway  Co.,  108  Mich.  1,  65  X.  W.  663 347 

Schneider  v.  Railway  Co.,  99  Wis.  378,  75  N.  W.  169 10,  332 

Schoen  v.  Railroad  Co.  (Super.  N.  Y.)  9  N.  Y.  Supp.  709 399 

Schofield  v.  Railway  Co.,  8  Fed.  488 42 

114  U.  S.  615,  5  Sup.  Ct  1125 340- 

School  Dist.  in  Medfield  v.  Railroad  Co.,  102  Mass.  552 212,  239 

Schopman  v.  Railroad  Corp.,  9  Gush.  (Mass.)  24 182,  189,  206 

Schotsmans  v.  Railroad  Co.,  2  Ch.  App.  332 29S 

Schrier  v.  Railway  Co.,  65  Wis.  457,  27  X.  W.  167 410 

Schroeder  v.  Railroad  Co.,  5  Duer  (X.  Y.)  55 292 

47  Iowa,  375 147 

103  Mich.  213,  61  X.  W.  663 137,  140 

Schulz  v.  Railway  Co.,  57  Minn.  271,  59  X.  W.  192 103- 

Schulze-Berge  v.  The  Guildhall,  58  Fed.  796 255,  256 

Schumacher  v.  City  of  Xew  York  (Sup.)  57  X.  Y.  Supp.  968 448 

v.  City  of  St.  Louis,  3  Mo.  App.  297 441,  445 


CASES  CITED.  0  I  I 

Page- 
Schwartz  v.  Gilmore,  45  111.  455 302 

v.  Shull  (W.  Va.)  31  S.  E.  914 18,  87,  91 

Schwarz  v.  Judd,  28  Minn.  371,  10  N.  W.  208 403,  416 

Schwingschlegl  v.  City  of  Monroe,  113  Mich.  683,  72  N.  W.  7 434 

Scott  v.  Hunter,  46  Pa.  St.  192 21,  24 

v.  Manchester,  37  Eng.  Law  &  Eq.  495 420 

v.  Mayor,  etc.,  37  Eng.  Law  &  Eq.  495 431 

Y.  Province,  1  Pittsb.  R.  (Pa.)  189 284 

v.  Railway  Co.,  144  Ind.  125,  43  X.  E.  133 198 

72  Miss.  37,  16  South.  205 342 

v.  Shepherd,  2  W.  Bl.  892,  3  Wils.  403 18 

Y.  Simons,  54  N.  H.  426 315 

Scotten  v.  Fegan,  62  Iowa,  236,  17  N.  W.  491 386 

Scovill  v.  Griffith,  12  N.  Y.  509 234 

Scribner  v.  Kelley,  38  Barb.  (N.  Y.)  14 361 

Scudder  v.  Crossan,  43  Ind.  343 378,  379 

Seabrook  v.  Hecker,  2  Rob.  (X.  Y.)  291 302 

Seaman  v.  City  of  Marshall  (Mich.)  74  N.  W.  484 430 

v.  Koehler,  122  N.  Y.  646,  25  N.  E.  353 56 

v.  Mayor,  etc.,  80  N.  Y.  239 449 

Seamans  v.  Railroad  Co.,  174  Pa.  St  421,  34  Atl.  568 34.0 

Searle  v.  Parke  (N.  H.)  34  Atl.  744 167 

Searles  v.  Railroad  Co.,  101  N.  Y.  661,  5  N.  E.  66 358 

Searle's  Adm'r  v.  Railway  Co.,  32  W.  Va.  370,  9  S.  E.  248 40S 

Sears  v.  Lydon  (Idaho)  49  Pac.  122 382 

v.  Railroad  Co.,  14  Allen  (Mass.)  433 210- 

Seaver  v.  Railroad  Co.,  14  Gray  (Mass.)  466 93,  190< 

St<comb  v.  Nutt,  14  B.  Mon.  (Ky.)  324 29S 

Second  Nat.  Bank  of  Momnouth  v.  Gilbert,  174  111.  485,  51  X.  E.  584 383 

Secord  v.  Railway  Co.,  5  McCrary,  515,  18  Fed.  221 53 

15  U.  C.  Q.  B.  631 407 

Seeley  v.  Town  of  Litchfield.  49  Conn.  134 434 

Segura  v.  Reed,  3  La.  Ann.  695 284,  28G 

Selden  v.  Canal  Co.,  24  Barb.  (X.  Y.)  362 317 

Selfridge  v.  Lithgow,  2  Mass.  374 381 

Seligman  v.  Armijo,  1  X.  M.  459 229 

Sellars  v.  Foster,  27  Xeb.  118,  42  X.  W.  907 413 

Seltzer  v.  Saxton,  71  111.  App.  229 367 

Selvege  v.  Railway  Co.,  135  Mo.  163,  36  S.  W.  652 366 

Serensen  v.  Railroad  Co.,  45  Fed.  407 403,  412,  416 

Sessengut  v.  Posey,  67  Ind.  408 303 

Severy  v.  Railway  Co.,  6  Okl.  153,  50  Pac.  162 332 

Sevier  v.  Railroad  Co.,  61  Miss.  8 180- 

Sewell  v.  City  of  Cohoes,  75  X.  Y.  45 445 

v.  City  .of  St.  Paul,  20  Minn.  511  (Gil.  459) 441 

Sexton  v.  Xevers,  20  Pick.  (Mass.)  451 384 

Seybolt  v.  Railroad  Co.,  95  N.  Y.  562 188,  189- 

Seymer  Y.  Town  of  Lake,  66  Wis.  U51,  29  N.  W.  554 76,  77 

BAR.XEG.-37 


578  CASES  CITED. 

Page 

Seymour  v.  Greenwood,  7  Hurl.  &  N.  355,  6  Hurl.  &  N.  359 168 

v.  Newton,  105  Mass.  272 298 

v.  Railway  Co.,  3  Biss.  43,  Fed.  Cas.  No.  12,685 208 

69  Vt.  555,  38  Atl.  236 327 

Shaber  v.  Railway  Co.,  28  Minn.  103,  9  N.  W.  575 407 

Shackt  v.  Railroad  Co.,  94  Tenn.  658,  30  S.  W.  742 230,  231 

Shadd  v.  Railroad  Co.,  96  N.  C.  968,  21  S.  E.  554 149 

Shadford  v.  Railway  Co.,  Ill  Mich.  390,  69  N.  W.  661 91 

Shanny  v.  Androscoggin  Mills,  66  Me.  420,  426. 91,  148 

Sharp  v.  Lamy  (Sup.)  55  N.  Y.  Supp.  784 383 

Sharrer  v.  Paxson,  171  Pa.  St.  26,  33  Atl.  120 177 

Shartle  v.  City  of  Minneapolis,  17  Minn.  308  (Gil.  284) 432 

Shaw  v.  Craft,  37  Fed.  317 61 

v.  Railway  Co.,  18  Law  J.  Q.  B.  181,  13  Q.  B.  347 223 

40  Minn.  144,  41  N.  W.  548 274 

v.  Sheldon,  103  N.  Y.  667,  9  N.  B.  183 109 

Sheehan  v.  City  of  Boston,  171  Mass.  296,  50  N.  E.  543 440 

v.  Prosser,  55  Mo.  App.  569 148 

v.  Railroad  Co.,  91  N.  Y.  232 102 

166  Pa.  St.  354,  31  Atl.  120 332,  337 

Sheff  v.  City  of  Huntington,  16  W.  Va.  307 86 

Sheffield  v.  Telephone  Co.,  36  Fed.  164 61 

Shehan  v.  Cornwall,  29  Iowa,  99 365 

Shelbyville  L.  B.  R.  Co.  v.  Lewark,  4  Ind.  471 211 

Shelbyville  R.  Co.  v.  Railroad  Co.,  82  Ky.  541 290 

Sheldon  v.  Railroad  Co.,  29  Barb.  (N.  Y.)  226;    14  N.  Y.  218 356 

v.  Sherman,  42  N.  Y.  484 319 

Shelton  v.  Railroad  Co.,  29  Ohio  St.  214 198 

v.  Transportation  Co.,  59  N.  Y.  258 257 

Shenk  v.  Propeller  Co.,  60  Pa.  St.  109 286,  288 

Shepard  v.  Railroad  Co.,  35  N.  Y.  641 347 

Sheridan  v.  New  Quay  Co.,  4  C.  B.  (N.  S.)  618 297 

v.  Railroad  Co.,  36  N.  Y.  39 205 

v.  Salem,  14  Or.  328,  12  Pac.  925 456 

Sherley  v.  Billings,  8  Bush   (Ky.)  147 170 

Sherlock  v.  Ailing,  44  Ind.  184 414,  419 

Sherman  v.  City  of  Grenada,  51  Miss.  186 448 

v.  Iron- Works  Co.,  2  Allen  (Mass.)  524 53 

v.  Railway  Co.,  34  Minn.  259,  25  N.  W.  593 117 

64  N.  Y.  254 285 

y.  Stage  Co.,  22  Iowa,  556 421 

24  Iowa,  515 421 

v.  Steamship  Co.,  26  Hun,  107 223 

v.  Wells,  28  Barb.  (N.  Y.)  403 215 

Sherrill  v.  Shuford,  32  N.  C.  200 381 

Sherwood  v.  Fischer,  3  Hun  (N.  Y.)  606 154 

Shields  v.  Yonge,  15  Ga.  349 391 

Shindelbeck  v.  Moon  (Ohio  Sup.)  17  Am.  Law  Reg.  450 311 

32   Ohio   St.   264..  .  317 


CASES  CITED.  579 

Page 

Shipley  v.  Fifty  Associates,  101  Mass.  251 303 

Shippy  v.  Village  of  Au  Sable,  85  Mich.  280,  48  N.  W.  584 71 

Shirk  v.  Railroad  Co.,  14  Ind.  App.  126.  42  N.  E.  656 338 

Shoemaker  v.  Kingsbury,  12  Wall.  369 176 

Short  v.  Bohle,  64  Mo.  App.  242,  2  Mo.  App.  Rep'r,  1103 363 

Showalter  v.  Fairbanks,  Morse  &  Co.,  88  Wis.  376,  60  N.  W.  257 121 

Shriver  v.  Railroad  Co.,  24  Minn.  506 -. 220,  231 

Shulz  v.  Griffith,  103  Iowa,  150,  72  N.  W.  445,  40  Lawy.  Rep.  Ann.  117.  .363,  365 

Shute  v.  Princeton  Tp.,  58  Minn.  337,  59  X.  W.  1050 166,  447 

Sibilrud  v.  Railroad  Co.,  29  Minn.  58,  11  N.  W.  146 357 

Sibley  v.  Railroad  Co.,  32  Minn.  526,  21  N.  W.  732 352 

Sickles  v.  Ice  Co.,  80  Hun,  213,  30  N.  Y.  Supp.  100 44 

Siddall  v.  Jansen,  168  111.  43,  48  N.  E.  191,  39  Lawy.  Rep.  Ann.  112 306 

Sieber  v.  Railway  Co.  (Minn.)  79  N.  W.  95 406 

Sievers  v.  City  and  County  of  San  Francisco,  115  Cal.  648,  47  Pac.  687 443 

v.  Lumber  Co.,  151  Ind.  642,  50  N.  E.  877 89 

Silberstein  v.  Railroad  Co.,  52  Hun,  611,  4  N.  Y.  Supp.  843 66 

Sills  Y.  Brown,  9  Car.  &  P.  601,  606 36 

Silver  v.  Hale,  2  Mo.  App.  557 236 

Simmer  v.  City  of  St.  Paul,  23  Minn.  408 425 

Simmonds  v.  Railroad  Co.,  52  Conn.  264 353 

Simmons  v.  Railway  Co.,  2  App.  Div.  117,  37  N.  Y.  532 343 

Simon  v.  Henry  (N.  J.  Sup.)  41  Atl.  692 369 

Simon-Reigel  Cigar  Co.  v.  Battery  Co.,  20  Misc.  Rep.  598,  46  N.  Y.  Supp.  416  311 

Simons  Y.  Monier,  29  Barb.  (X.  Y.)  419 156 

Simons'  Adm'r  v.  Railway  Co.,  96  Va.  152,  31  S.  E.  7 328 

Simpson  v.  City  of  Keokuk,  34  Iowa,  568 54 

v.  Hand,  6  Whart.  (Pa.)  311 58 

v.  Railroad  Co.,  5  Lea  (Tenn.)  456 357 

Sindlinger  v.  City  of  Kansas  City,  126  Mo.  315,  28  S.  W.  857 436 

Singer  Mfg.  Co.  v.  Rahn,  132  U.  S.  518,  10  Sup.  Ct  175 158,  161 

Sioux  City  &  P.  R.  Co.  v.  Smith,  22  Neb.  775,  36  N.  W.  285 148 

v.  Stout,   17  Wall.   657 67 

Skinner  v.  Bridge  Co.,  29  Conn.  523 438 

v.  Hall,  60  Me.  477 294 

v.  Railroad  Corp.,  1  Cush.  (Mass.)  475N 391 

y.  Railway  Co.,  5  Exch.  787 189 

Slater  v.  Chapman,  67  Mich.  523,  35  N.  W.  106 137 

v.  Jewett,  85  X.  Y.  61 102,  127,  132 

v.  Railway  Co.,  71  Iowa,  209,  32  N.  W.  264 60 

29  S.  C.  96,  6  S.  E.  936 219,  220,  226 

Slattery  v.  O'Connell,  153  Mass.  94,  26  N.  E.  430 71 

Sleade  v.  Payne,  14  La.  Ann.  453 286 

Sleeper  v.  Railroad  Co.,  58  N.  H.  520 86 

v.  Sandown,  52  X.  H.  244 75,  336 

Slight  v.  Gutzlaff,  35  Wis.  675 314 

Sloan  v.  State,  8  Blackf.  (Ind.)  361 424 

Slocum  v.  Fairchild,  7  Hill  (X.  Y.)  292 254 

Slomau  v.  Railroad  Co.,  6  Hun,  546;    67  X.  Y.  208 270,  273 


580  CASES  CITED. 

Page 

rflossen  v.  Railroad  Co.,  60  Iowa,  215,  14  X.  W.  244 357 

Sly  v.  Finch,  Cro.  Jac.  514 385 

Small  r.  Railroad  Co.,  55  Iowa,  582,  18  N.  W.  437 26,  352 

Sumllman  v.  Whilter,  87  111.  545 192 

Smaltz  v.  Boyce,  109  Mich.  382,  69  N.  W.  21 15t> 

Smedis  v.  Railroad  Co.,  88  N.  Y.  13 337,  338 

Sniedley  v.  Railway  Co.,  184  Pa.  St.  620,  39  Atl.  544 202 

Smeltz  v.  Railroad  Co.,  186  Pa.  St.  364,  40  Atl.  479 336- 

Smith  v.  Board,  3  C.  P.  Div.  423 455 

v.  Car  Works,  60  Mich.  501,  27  X.  W.  662 113,  US 

v.  City  of  Philadelphia,  81  Pa.  St.  38 431 

v.  City  of  Rochester,  76  N.  Y.  506 9,  441,  444,  445,  452,  45£ 

y.  Day,  86  Fed.  62 50,  306 

V.  Express  Co.,  108  Mich.  572,  66  N.  W.  479 248- 

v.  Fletcher,  L.  R.  7  Exch.  305 319 

v.  Heineman  (Ala.)  24  South.  364 384 

v.  Inhabitants,  7  Cush.  (Mass.)  498 436- 

v.  Iron  Co.,  42  N.  J.  Law,  467 106- 

v.  Judkins,  60  N.  H.  127 381 

v.  Major,  16  Ohio  Cir.  Ct  R.  362,  8  Ohio  Dec.  649 441 

v.  Munch,  65  Minn.  256,  68  N.  W.  19 175 

y.  New  York,  66  N.  Y.  295 429- 

v.  Pelah,  2  Strange,  1264 365- 

v.  Potter,  46  Mich.  263,  9  N.  W.  273 136 

v.  Railroad  Co.,  88  Ala.  538,  7  South.  119 ISO- 

91  Ala.  455,  8  South.  754 23,  221,  224,  226 

12  Allen  (Mass.)  531 233,  266 

43  Barb.  (X.  Y.)  225 296 

90  Fed.  783 68,  327 

84  Ga.  183,  10  S.  E.  602 418 

88  Hun  (X.  Y.)  33 59 

.  141  Ind.  92,  40  N.  E.  270 332,  337 

25  Kan.  738 70 

L.  R.  6  C.  P.  21 10,  12 

87  Me.  339,  32  Atl.  967 330 

92  Mo.  359,  360,  4  S.  W.  129 148,  407,  414 

82  Minn.  1,  18  N.  W.  827 177 

35  N.  H.  356 84,  85,  345 

44  N.  H.  325 273 

19  N.  Y.  127 129 

24  X.  Y.  222 245 

64  N.  0.  235 219,  239 

29  Or.  539,  46  Pac.  136,  780 178 

30  S.  W.  (Ky.)  209 337 

91  Wis.  503,  65  X.  W.  183 151 

L.  R.  6  C.  P.  14 1£ 

v.  Shepherd,  Abb.  Shipp.  (13th  Ed.)  p.  459 228 

v.  Sherwood  Tp.,  62  Mich.  159,  28  N.  W.  806 18- 

v.  Spitz,  156  Mass.  319,  31  X.  E.  5 174 


CASES  CITED.  581 

Page 

Smith  v.  Traders'  Exchange,  91  Wis.  360,  64  N.  W.  1041 165 

v.  Transportation  Co.,  89  Hun,  588,  35  N.  Y.  Supp.  534 93 

v.  Webster,  23  Mich.  298 174 

v.  Wildes,  143  Mass.  556,  10  N.  E.  446  75 

Smitha  v.  Railroad  Co.,  86  Tenn.  198,  6  S.  W.  209 251,  252 

Snioot  v.  Mayor,  etc.,  24  Ala.  112 425,  450 

v.  Railroad  Co.,  67  Ala.  13 133,  145 

Smothers  v.  Hanks,  34  Iowa,  286 376,  377 

Srnyrl  v.  Niolon,  2  Bailey  (S.  C.)  421 227 

Smyth  v.  City  of  Bangor,  72  Me.  249 433 

Snider  v.  City  of  St.  Paul,  51  Minn.  466,  53  N.  W.  763 426,  440 

v.  Express  Co.,  60  Mo.  376 257 

Snow  v.  Provincetown,  120  Mass.  580 76 

Suyder  v.  Railway  Co.,  11  W.  Va,  14 359 

v.  Town  of  Rockport,  6  Ind.  237 439,  442 

Soeder  v.  Railway  Co.,  100  Mo.  673,  13  S.  W.  714 408 

Sopherstein  v.  Bertels,  178  Pa.  St.  401,  35  Atl.  1000 84 

Soumet  v.  Express  Co.,  66  Barb.  (N.  Y.)  284 257 

South  Bend  Iron  Works  v.  Larger,  11  Ind.  App.  367,  39  N.  E.  209 48 

South  Bend  Mfg.  Co.  v.  Liphart,  12  Ind.  App.  185,  39  N.  E.  908 .'.20,  25 

South  Carolina  R.  Co.  v.  Nix,  68  Ga.  572 184,  417 

South  Chicago  City  Ry.  Co.  v.  Adamson,  69  111.  App.  110 37 

Southcote  v.  Stanley,  1  Hurl.  &  N.  247 50,  51,  314 

South  Covington  &  C.  St.  Ry.  Co.  v.  Herrklotz  (Ky.)  47  S.  W.  265 65,  71 

v.  Ware,  84  Ky.  267,  1  S.  W.  493 40 

Southern  Cotton  Press  &  Mfg.  Co.  v.  Bradley,  52  Tex.  587 405 

Southerns  v.  Howe,  2  Rolle,  5-26 157,  167 

Southern  Exp.  Co.  v.  Armstead,  50  Ala.  350 283 

v.  Bank,  108  Ala.  517,  IS  South.  664 251 

v.  Caldwell,  21  Wall.  264 250,  251 

v.  Caperton,  44  Ala.  101 251 

v.  Crook,  44  Ala.  468,  469 212,  230 

v.  Everett,  37  Ga.  688 231,  283 

v.  Glenn,  16  Lea  (Tenn.)  472,  1  S.  W.  102 229,  250 

v.  Hess,  53  Ala.  19 295 

v.  Hunnicutt,  54  Miss.  566 250,  251 

v.  Kaufman,  12  Heisk.  (Tenn.)  161 232 

v.  Moon,  39  Miss.  822 249 

v.  Newby,  36  Ga.  635 215,  259,  280 

v.  Shea,  38  Ga.  519 295 

v.  Womack,  1  Heisk.  (Tenn.)  256 225,  230 

Southern  Kan.  Ry.  Co.  v.  Rice,  38  Kan.  398,  16  Pac.  817 186 

Southern  Pac.  Co.  v.  McGill  (Ariz.)  44  Pac.  302 145 

v.  Ryan  (Tex.  Civ.  App.)  29  S.  W.  527 150 

Southern  Pac.  Ry.  Co.  v.  Johnson  (Tex.  App.)  15  S.  W.  121 236 

v.  Maddox,  75  Tex.  300,  12  S.  W.  815 249 

Southern  Ry.  Co.  v.  Barlow,  104  Ga.  213,  30  S.  E.  732 199 

v.  Covenia,  100  Ga.  46,  29  S.  E.  219,  40  Lawy.  Rep.  Ann.  253 406 

v.  Kendrick,  40  Miss.  374 180 


582  CASES  CITED. 

Page 

Southern  Ry.  Co.  v.  Kinchen,  103  Ga.  186,  29  S.  B.  816 284 

v.  Mitchell,  98  Tenn.  27,  40  S.  W.  72 181 

v.  Prather  (Ala,)  24  South.  836 334 

v.  Pugh,  97  Tenn.  624,  37  S.  W.  555 80 

v.  Watson,  104  Ga.  243,  30  S.  E.  818 80 

v.  Wideman  (Ala.)  24  South.  764 168,  170 

South  Florida  R.  Co.  v.  Rhodes,  25  Fla.  40,  5  South.  633 197 

Southwell  v.  City  of  Detroit,  74  Mich.  438,  42  N.  W.  118 447 

Southwestern  R.  Co.  v.  Felder,  46  Ga.  433 28S 

v.  Hankerson,   61  Ga.  114 79 

v.  Johnson,  60  Ga.  667 394 

v.  Paulk,  24  Ga.  356 392 

v.  Singleton,  66  Ga.  252 187 

South  &  X.  A.  R.  Co.  v.  Henlein,  52  Ala.  606 220,  232,  249,  262 

56  Ala.   368 238 

v.  Sullivan,  59  Ala.  272 401 

Sowden  v.  Mining  Co.,  55  Cal.  443 110 

Spade  v.  Railroad  Co.,  172  Mass.  488,  52  N.  E.  747 170,  206 

Spann  v.  Transportation  Co.,  11  Misc.  Rep.  680,  33  N.  Y.  Supp.  566 236 

Sparr  v.  City  of  St.  Louis,  4  Mo.  App.  573 436 

Spartan,  The,  25  Fed.  44,  56 286 

Spaulding  v.  Railway  Co.,  30  Wis.  110 351,  355,  357 

Spellman  v.  Rapid-Transit  Co.,  36  Neb.  890,  55  N.  W.  270 202 

Spelman  v.  Iron  Co.,  56  Barb.  (N.  Y.)  151 106 

Spence  v.  Schultz,  103  Cal.  208,  37  Pac.  220 165 

Spencer  v.  Lovejoy,  96  Ga,  657,  23  S.  E.  836 199 

v.  Railroad  Co.,  29  Iowa,  55 38 

Spinner  v.  Railroad  Co.,  67  N.  Y.  153 341,  345,  346 

Splittdorf  v.  State,  108  N.  Y.  205,  15  N.  E.  322 49 

Spofford  v.  Harlow,  3  Allen  (Mass.)  176 46 

v.  Railroad  Co.,  128  Mass.  326 200 

Spohn  v.  Dives,  174  Pa,  St.  474,  34  Atl.  192 , . .  301 

Spokane  &  P.  Ry.  Co.  v.  Holt  (Idaho)  40  Pac.  56 62 

Spooner  v.  Mattoon,  40  Vt.  300 31 

Spoue  v.  Hemmingway,  14  Pick.  (Mass.)  1 161 

Sprague  v.  Baker,  17  Mass.  586 374 

•  v.  City  of  Worcester,  13  Gray  (Mass.)  193 442 

v.  Railway  Co.,  34  Kan.  347,  8  Pac.  465 238,  251 

52  X.  Y.  637  .  . 287 

v.  Smith,  29  Vt.  421 216 

Spray  v.  Ammerman,  66  111.  309 364 

Springfield  v.  Spence,  39  Ohio  St.  665 429 

Springfield  Consol.  Ry.  Co.  v.  Welsch,  155  111.  511,  40  N.  E.  1034 67,  68 

Sprong  v.  Railroad  Co.,  60  Barb.  (N.  Y.)  30 83 

Sprow  v.  Railroad  Co.,  163  Mass.  330,  39  N.  E.  1024 330,  337 

Sprowl  v.  Kellar,  4  Stew.  &  P.  (Ala.)  382 228 

Squire  v.  Railroad  Co.,  98  Mass.  239 239,  247,  248 

Staal  v.  Railroad  Co.,  57  Mich.  239,  23  N.  W.  795 412 

Stackus  v.  Railroad  Co.,  7  Hun  (N.  \ .)  559 330 


CASES  CITED.  583 

Page 

Stacy  v.  Bank,  12  Wis.  629 387 

Stafford  v.  City  of  Oskaloosa,  57  Iowa,  749,  11  X.  W.  668 60,  394 

Stahl  v.  City  of  Duluth,  71  Minn.  341,  74  X.  W.  143 141 

Standard  Oil  Co.  v.  Bowker,  141  Ind.  12,  40  N.  E.  128 54 

v.  Helmick,  148  Ind.  457,  47  X.  E.  14 120 

Standish  v.  Steamship  Co.,  Ill  Mass.  512 201 

Stanley  v.  City  of  Davenport,  54  Iowa,  463,  2  N.  W.  1064,  6  X.  W.  706 446 

Stannard  v.  Ullithorne,  10  Bing.  491 373,  374 

Stanton  v.  Railroad  Co.,  91  Ala.  382,  8  South.  798 18 

Staples  v.  Schmid,  18  R.  I.  224,  26  Atl.  193-196 169,  174 

Stapleton  v.  City  of  Newburgh,  9  App.  Div.  39,  41  N.  Y.  Supp.  96 432 

Starling  v.  Incorporated  Town  of  Bedford,  94  Iowa,  194,  62  N.  W.  674 437 

Starr  v.  Railway  Co.,  67  Minn.  18,  69  N.  W.  632 212 

State  v.  Berdetta,  73  Ind.  185 435 

v.  Boughton,  58  Mo.  App.  155 386 

v.  Campbell,  32  N.  J.  Law,  309 183,  184,  199 

v.  Chovin,  7  Iowa,  204 196 

v.  Covington,  29  Ohio  St.  102 443 

v.  Dalton,  69  Miss.  611,  10  South.  578 383 

v.  Gilmore,  24  N.  H.  461 403 

v.  Herod,  6  Blackf.  (Ind.)  444 384 

v.  Kinney,  34  Minn.  311,  25  X.  W.  705 169,  185 

v.  Koontz,  83  Mo.  323 383 

v.  Lindsay,  73  Mo.  App.  473 383 

v.  Malster,  57  Md.  287 132 

v.  Merritt,  35  Conn.  314 435 

v.  Meyer,  2  Mo.  App.  413 386 

v.  Moore,  31  Conn.  479 308 

v.  O'Xeill  (Mo.  Sup.)  52  S.  W.  240 382 

v.  Overton,  24  N.  J.  Law,  435,  441 196-198 

v.  Plass,  58  Mo.  App.  148 386 

v.  Powell,  44  Mo.  436 54 

v.  Probate  Court,  51  Minn.  241.  53  X.  W.  463 406 

V.  Railroad  Co.  (Md.)  17  Atl.  88 404 

24  Md.  84 405,  410 

70  Md.  319,  17  Atl.  88 403 

60  Me.  145 403 

60  Me.  490 397,  398 

61  Me.  114 397 

76  Me.   357 83 

71  Mo.  App.  385 271 

52  X.  H.  528 403 

v.  Smith,  78  Me.  260,  4  Atl.  412 57,  157,  167 

v.  Spokane  St.  Ry.  Co.,  19  Wash.  518,  53  Pac.  719 217 

v.  Woodward,  23  Vt.  92 435 

Stebbins  v.  Railroad  Co.,  54  Vt.  464 36,  54 

Stedman  v.  City  of  Rome,  88  Hun,  279,  34  N.  Y.  Supp.  737 437 

Steel  v.  Borough  of  Huntingdon  (Pa.  Sup.)  4.3  Atl.  398 437 

T.  Burkhardt,  104  Mass.  59 47 


584  CASES  CITED. 

Page 

Steel  v.  Kurtz,  28  Ohio  St.  191 404,  405 

v.  Railway  Co.,  107  Mich.  516,  65  N.  W.  573 333 

Steele  v.  McTyer's  Adm'r,  31  Ala.  667 216 

v.  Railway  Co.  (Wash.)  57  Pac.  820 330 

v.  Townsend,  37  Ala.  247 220 

Steers  v.  Steamship  Co.,  57  N.  Y.  1 219,  247,  271 

Steinhauser  v.  Spraul,  127  Mo.  541,  28  S.  W.  620,  30  S.  W.  102 112 

Steinhofel  v.  Railway  Co.,  92  Wis.  123,  65  N.  W.  852 338 

Steinke  v.  Match  Co.,  87  Wis.  477,  58  N.  W.  842 151 

Steinmetz  v.  Kelly,  72  Ind.  442 35 

Steinson  v.  Heath,  3  Lev.  400 455 

Steinweg  v.  Railway  Co.,  43  N.  Y.  123 223,  355 

Stell,  Ex  parte,  4  Hughes,  157,  Fed.  Gas.  No.  13,358 324 

Stenberg  v.  Willcox,  96  Tenn.  163,  33  S.  W.  917 313 

Stendal  v.  Boyd  (Minn.)  75  N.  W.  735 307 

Stephens  v.  City  of  Macon,  83  Mo.  345 84 

v.  Doe,  73  Cal.  27,  14  Pac.  378 146 

Stephenson  v.  Duncan,  73  Wis.  404,  41  N.  W.  337 116 

v.  Hart,  4  Biiig.  476,  484 283 

Sterger  v.  Van  Sicklen,  132  N.  Y.  499,  30  N.  E.  987 48,  312 

Stetler  v.  Railway  Co.,  46  Wis.  497,  1  N.  W.  112 27,  129 

49  Wis.  609,  6  N.  W.  303 96 

Stetson  v.  Kempton,  13  Mass.  272 444 

Stevens  v.  Armstrong,  6  N.  Y.  435 60 

v.  Nichols,  155  Mass.  472,  29  N.  E.  1150 49,  50 

v.  Railway  Co.,  67  Mo.  App.  356 31 

v.  Walker,  55  111.  151 372 

Stevenson  v.  Gelsthorpe,  10  Mont.  563,  27  Pac.  404 378 

Steves  v.  Railroad  Co.,  18  N.  Y.  422 339 

Stewart  v.  City  of  Nashville,  96  Tenn.  50,  33  S.  W.  613 85 

v.  Ferguson,  34  App.  Div.  515,  54  N.  Y.  Supp.  615 90,  133 

v.  Gracy,  93  Tenn.  314,  27  S.  W.  664 279,  280 

v.  Railroad  Co.,  103  Ind.  44,  2  N.  E.  208 403,  416 

21  Ind.  App.  218,  52  N.  E.  89 .- 252 

1  McCrary,  312,  3  Fed.  768 294 

77  N.  W.  (Mich.)  643 331,  335 

90  N.  Y.  588 170 

40  W.  Va.  188,  20  S.  E.  922 108-110 

Stickney  v.  Munroe,  44  Me.  195 314 

Stierle  v.  Railway  Co.,  156  N.  Y.  70,  50  N.  E.  419 202 

Stiff  v.  McLaughlin,  19  Mont.  300,  48  Pac.  232 ' 381 

Stiles  v.  Davis,  1  Black,  101 232,  233 

v.  Geesey,  71  Pa.  St.  439 37 

v.  Railroad,  65  Ga.  370 211 

Stilling  v.  Town  of  Thorp,  54  Wis.  528,  11  N.  W.  906 426 

Stillson  v.  Railroad  Co.,  67  Mo.  671 335 

Stimson  v.  Railroad  Co.,  98  Mass.  83 271 

Stinnett  v.  City  of  Sherman  (Tex.  Civ.  App.)  43  S.  W.  847 442 

Stoddard  v.  Village  of  Saratoga  Springs,  127  N.  Y.  261,  27  N.  E.  1030.  .441,  445 


CASES  CITED.  5S5 

Page 

rStoeckman  v.  Railroad  Co.,  15  Mo.  App.  503 83 

.Stoher  v.  Railway  Co.,  91  Mo.  509,  4  S.  W.  389 408 

Stokes  v.  Railroad  Co.,  107  N.  C.  178,  11  S.  E.  991 208 

.Stoll  v.  Mining  Co.  (Utah)  57  Pac.  295. .. 99 

.Stone  v.  Hills,  45  Conn.  44 173 

v.  Hunt,  94  Mo.  475,  7  S.  W.  431 86 

114  Mo.  66,  21  S.  W.  454 42 

v.  Inhabitants,  100  Mass.  50 433 

v.  Jackson,  16  C.  B.  199 310 

v.  Railroad  Co.,  171  Mass.  536,  51  N.  E.  1 20,  87 

115  N.  Y.  104,  21  N.  E.  712 66 

v.  Railroad  Corp.,  19  N.  H.  427 166 

v.  Rice,  58  Ala.  95 286 

v.  Trust  Co.,  116  U.  S.  307,  16  Sup.  Ct.  334,  388,  1191 201 

v.  Waitt,  31  Me.  409 281 

:Stoneman  v.  Railway  Co.,  52  N.  Y.  429 270 

Storey  v.  Ashton,  L.  R.  4  Q.  B.  476 173 

Storr  v.  Crowley,  1  McClel.  &  Y.  129 282,  283 

•Storrs  v.  City  of  Utica,  17  N.  Y.  104 164,  174 

-Stott  v.  Harrison,  73  Ind.  17 374 

Stough  v.  State,  88  Ala.  234,  7  South.  150 378 

•Stover  v.  Inhabitants,  51  Me.  439 54 

Strader  v.  Railroad  Co.,  157  N.  Y.  708,  52  N.  E.  1126 129 

.Stranahan  Bros.  Catering  Co.  v.  Coit,  55  Ohio  St.  398,  45  N.  E.  634 158,  171 

Strand  v.  Railway  Co.,  67  Mich.  380,  34  N.  W.  712 183 

Straus  v.  Railroad  Co.,  75  Mo.  185 52,  181 

•Strauss  v.  Mfg.  Co.,  23  App.  Div.  1,  48  N.  Y.  Supp.  425 133 

Strawbridge  v.  Bradford,  128  Pa.  St.  200,  18  Atl.  346 66 

:Street  v.  Inhabitants,  105  Mass.  82 61 

Street  Ry.  Co.  v.  Bolton,  43  Ohio  St.  224,  1  N.  E.  333 , 179 

Stringham  v.  Stewart,  100  N.  Y.  516,  3  N.  E.  575 151 

Stroble  v.  Railway  Co.,  70  Iowa,  555,  31  N.  W.  63 147 

Strodtman  v.  Menard  Co.,  56  111.  App.  120 372 

Strong  v.  Railway  Co.,  94  Iowa,  380,  62  N.  W.  799 103 

Struck  v.  Railway  Co.,  58  Minn.  298,  59  N.  W.  1022 337 

Struckmeyer  v.  Lamb,  64  Minn.  57,  65  N.  W.  930 374 

:Strudgeon  v.  Village  of  Sand  Beach,  107  Mich.  496,  65  N.  W.  616 54 

Strutzel  v.  Railway  Co.,  47  Minn.  543,  50  N.  W.  690 410 

Stuart  v.  Hawley,  22  Barb.  (N.  Y.)  619 349,  350 

v.  Machiasport,  48  Me.  477 70,  77,  83 

Stubbs  v.  Scene's  Adm'r,  37  Ala.  627 372 

Stucke  v.  Railroad  Co.,  50  La.  Ann.  172,  23  South.  342 151 

9  Wis.  202 52 

Sturges  v.  Society,  130  Mass.  414 162,  163 

Sturgis  v.  Railway  Co.,  72  Mich.  619,  40  N.  W.  914 209 

v.  Robbins,  62  Me.  289 349 

Styles  v.  Railroad  Co.,  118  N.  C.  1084,  24  S.  E.  740 38,  52 

.Sue,  The,  22  Fed.  843 195 


(i  CASES  CITED. 

Pag& 

Sullivan  v.  Mfg.  Co.,  113  Mass.  396 113 

v.  Railroad  Co.,  62  Conn.  209,  25  Atl.  711 146- 

148  Mass.  119,  18  N.  E.  678 183,  197 

112  N.  Y.  643,  20  N.  E.  509 128,  129- 

30  Pa.  St.  234 54 

v.  Thompson,  99  Mass.  259 283 

Sullivan's  Adm'r  v.  Bridge  Co.,  9  Bush    (Ky.)  81 37 

Sultana,  The,  v.  Chapman,  5  Wis.  454 285- 

Summers  v.  Daviess  Co.,  103  Ind.  262,  2  N.  E.  725 443 

Sunderland  v.  Westcott,  2  Sweeny  (N.  Y.)  260 258- 

Sunney  v.  Holt,  15  Fed.  880 9£ 

Supervisors  Rock  Island  Co.  v.  U.  S.,  4  Wall.  435 425 

Surrey,  The,  26  Fed.  791 .' 286 

Sutherland  v.  Ingalls,  63  Mich.  620,  30  N.  W.  342 169 

Sutton  v.  Board,  41  Miss.  236 456- 

Suydam  v.  Moore,  8  Barb.  (N.  Y.)  358 156- 

Swainson  v.  Railway  Co.,  3  Exch.  Div.  341 130 

Swanson  v.  City  of  Lafayette,  134  Ind.  625,  33  N.  E.  1033 105- 

Sweeney  Y.  Envelope  Co.,  101  N.  Y.  520,  5  N.  E.  358 91,  121 

Sweeny  v.  Murphy,  32  La.  Ann.  628 156- 

v.  Railroad  Co.,  10  Allen  (Mass.)  368 69,  305,  325,  333 

Sweet  v.  Barney,  23  N.  Y.  335 215 

v.  Railroad  Co.,  87  Mich.  559,  49  N.  W.  559 115 

40  Atl.  (R.  I.)  237 4ia 

Swetland  v.  Railroad  Co.,  102  Mass.  276 233,  234 

Swift  v.  Railroad  Co.,  123  N.  Y.  645,  25  N.  E.  378 327 

Swindler  v.  Hilliard,  2  Rich.  Law  (S.  C.)  286 216,  220 

Swinfen  v.  Chelmsford,  5  Hurl.  &  N.  890 372 

Swinyard  v.  Bowes,  5  Maule  &  S.  62 387 

Swoboda  v.  Ward,  40  Mich.  420 87 

Swords  v.  Edgar,  59  N.  Y.  28 312 

Sykes  v.  Railway  Co.,  44  Law  J.  C.  P.  191,  32  Law  T.  (N.  S.)  199,  23 

Wkly.  Rep.  473  411 

Symns  v.  Schotten,  35  Kan.  310,  10  Pac.  828 298- 

Symonds  v.  Board,  71  111.  355 450 

v.  Sup'rs.  71  111.  355 456 

Szathmary  v.  Adams,  166  Mass.  145,  44  N.  E.  124 311 

T 

Tainter  v.  City  of  Worcester,  123  Mass.  311 450 

Talbot  v.  Railroad  Co.,  151  N.  Y.  155,  45  N.  E.  382 43S 

Talbott  v.  Transportation  Co.,  41  Iowa,  247 253 

Tally  v.  Ayres,  3  Sneed  (Tenn.)  677 31,  367 

Tarbell  v.  Railroad  Co.,  34  Cal.  616 193,  194 

v.  Shipping  Co.,  110  N.  Y.  170,  17  N.  E.  721 286-288- 

Tarry  v.  Ashton,  1  Q.  B.  Div.  314 165,  303,  311 


CASES  CITED.  587 

Page 

Taylor  v.  Canal  Co.,  113  Pa.  St.  162,  8  Atl.  43 327 

v.  Coal  Co.,  94  N.  C.  525 420 

v.  Gorman,  4  Ir.  Eq.  550 373 

v.  Inhabitants,  8  Mete.  (Mass.)  4G2 452 

v.  Insurance  Co.,  37  N.  Y.  275 32O 

v.  Mfg.  Co.,  140  Mass.  150,  3  N.  E.  21 42 

143  Mass.  470,  10  N.  E.  308 109 

v.  Marble  Co.,  99  Ga.  512,  27  S.  E.  768 146 

v.  Pennsylvania  Co.,  50  Fed.  755 202 

v.  Plumer,  3  Maule   &  S.  562 297 

v.  Railroad  Co.,  39  Ark.  148 .. 23& 

45  Cal.  323 ' 12£ 

L.  R.  1  C.  P.  385 235,  23$ 

48  N.  H.  304 20$ 

174  Pa.  St.  171,  34  Atl.  457 356 

Taylor,  B.  &  H.  Ry.  Co.  v.  Warner  (Tex.  Civ.  App.)  31  S.  W.  66 165 

Tefft  v.  Wilcox,  6  Kan.  46 377 

Telfer  v.  Railroad  Co.,  30  X.  J.  Law,  188 326,  410- 

Tellman  v.  Plock,  21  Fed.  349 285 

Tenney  v.  Tuttle,  1  Allen  (Mass.)  185 10O 

Terre  Haute  &  I.  R.  Co.  v.  Buck,  96  Ind.  346,  18  Am.  &  Eng.  R.  Cas. 

234  14,  180 

v.  Mansberger,  12  C.  C.  A.  574,  65  Fed.  196 145 

Terrell  Compress  Co.  v.  Arrington  (Tex.  Civ.  App.)  48  S.  W.  59 150- 

Terry  v.  Jewett,  78  N.  Y.  338,  17  Hun,  395 413 

v.  Railroad  Co.,  13  Hun  (N.  Y.)  359 200 

Tetherow  v.  Railroad  Co.,  98  Mo.  74,  11  S.  W.  310 40& 

Tewksbury  v.  Bucklin,  7  N.  H.  518 362 

Texas  Cent.  Ry.  Co.  v.  Lyons  (Tex.  Civ.  App.)  34  S.  W.  362 89- 

Texas,  etc.,  R.  Co.  v.  Capps,  16  Am.  &  Eng.  R.  Cas.  118. 271,  272 

18  Cent.  Law  J.  211 270- 

Texas  Loan  Agency  v.  Fleming  (Tex.  Civ.  App.)  46  S.  W.  63 304,  404 

49  S.  W.  (Tex.  Sup.)  1039 312 

Texas  Midland  R.  Co.  v.  Hooten  (Tex.  Civ.  App.)  50  S.  W.  499 357 

v.  Tidwell  (Tex.  Civ.  App.)  49  S.  W.  641 33& 

Texas  Pac.  Ry.  Co.  v.  Land  Co.  (Tex.  Civ.  App.)  49  S.  W.  253 359 

Texas  &  N.  O.  R.  Co.  v.  Bingle,  91  Tex.  287,  42  S.  W.  971 120 

41  S.  W.  (Tex.  Civ.  App.)  90 150- 

v.  Crowder,  61  Tex.  262;   63  Tex.  502;   70  Tex.  222,  7  S.  W.  709 39£ 

v.  Demilley  (Tex.  Civ.  App.)  41  S.  W.  147 196 

v.  Echols,  87  Tex.  339,  27  S.  W.  60,  28  S.  W.  517 103 

v.  Powell,  13  Tex.  Civ.  App.  212,  35  S.  W.  841 200- 

v.  Tatman,  10  Tex.  Civ.  App.  434,  31  S.  W.  333 103,  150 

Texas  &  P.  R.  Co.  v.  Adams,  78  Tex.  272,  14  S.  W.  666 296- 

v.  Alexander  (Tex.  Civ.  App.)  30  S.  W.  1113 180 

v.  Barnhart,  5  Tex.  Civ.  App.  601,  23  S.  W.  801 29$ 

v.  Barrett,  166  U.  S.  617,  17  Sup.  Ct  707 90- 

v.  Best,  66  Tex.  116,  18  S.  W.  224 211 

v.  Black,  87  Tex.  160,  27  S.  W.  118 188- 


,588  CASES  CITED. 

Page 

Texas  &  P.  R.  Co.  v.  Bond,  62  Tex.  442 184 

v.  Brown,  11  Tex.  Civ.  App.  503,  33  S.  W.  146 338 

v.  Buckalew  (Tex.  Civ.  App.)  34  S.  W.  165 203 

v.  Carlton,  60  Tex.  397 393 

v.  Cody,  166  U.  S.  606,  17  Sup.  Ct.  703 338 

v.  Curlin,  13  Tex.  Civ.  App.  505,  36  S.  W.  1003 3,  60 

v.  Dennis,  4  Tex.  Civ.  App.  90,  23  S.  W.  400 199,  200 

v.  Ferguson,  9  Am.  &  Eng.  R.  Cas.  395 271 

v.  Fletcher,  6  Tex.  Civ.  App.  736,  26  S.  W.  446 71 

v.  Gorman,  2  Tex.  Civ.  App.  144,  21  S.  W.  158 3 

v.  Hamilton,  66  Tex.  92,  17  S.  W.  406 29 

v.  Humphries  (Tex  Civ.  App.)  48  S.  W.  201 170 

v.  Jones  (Tex.  Civ.  App.)  39  S.  W.  124 207 

v.  Lester,  75  Tex.  56,  12  S.  W.  955 411 

v.  Lively,  14  Tex.  Civ.  App.  554,  38  S.  W.  370 38,  52 

v.  Mansell  (Tex.  Civ.  App.)  23  S.  W.  549 180 

v.  Morrison's  Faust  Co.  (Tex.  Civ.  App.)  48  S.  W.  1103 270 

v.  Mother,  5  Tex.  Civ.  App.  87,  24  S.  W.  79 67 

v.  Murphy,  46  Tex.  356 2 

T.  Neill  (Tex.  Civ.  App.)  30  S.  W.  369 337 

v.  Parrish,  1  White  &  W.  Civ.  Cas.  Ct.  App.  §  942 293 

v.  Payne  (Tex.  Civ.  App.)  38  S.  W.  366 219,  254 

v.  Phillips,  91  Tex.  278,  42  S.  W.  852 68 

v.  Reed,  88  Tex.  439,  31  S.  W.  1058 149 

v.  Rogers,  6  C.  C.  A.  403,  57  Fed.  378 108 

v.  Ross,  7  Tex.  Civ.  App.  653,  27  S.  W.  728 356 

v.  Scoville,  62  Fed.  730,  34  Am.  Law  Reg.  120 ' 170 

v.  Scrivener  (Tex.  Civ.  App.)  49  S.  W.  649 345 

v.  Smith,  14  C.  C.  A.  509,  67  Fed.  524 108 

v.  Thompson,  17  C.  0.  A.  524,  70  Fed.  944 91 

v.  Wilder,  35  C.  C.  A.  105,  92  Fed.  953 411 

v.  Williams,  10  C.  C.  A.  463,  62  Fed.  440 172 

v.  Woodall,  2  Willson  Civ.  Cas.  Ct.  App.  §  471 324 

v.  Woods,  S  Tex.  Civ.  App.  462,  28  S.  W.  416 18 

Texas  &  St.  L.  R.  Co.  v.  Young,  60  Tex.  201 45 

Thayer  v.  City  of  Boston,  19  Pick.  (Mass.)  511 425 

v.  Railroad  Co.,  93  Mich.  150,  53  X.  W.  216 42 

Theleman  v.  Moeller,  73  Iowa,  108,  34  N.  W.  765 147 

Thirteenth  &  F.  St.  Pass.  Ry.  Co.  v.  Boudrou,  92  Pa.  St.  475 42 

Thiry  v.  Malting  Co.,  37  App.  Div.  391,  56  N.  Y.  Supp.  85 157 

Thorn  v.  Pittard,  10  C.  C.  A.  352,  62  Fed.  232 145 

Thomas  v.  City  of  New  York,  28  Hun  (N.  Y.)  110 86 

v.  Express  Co.  (Minn.)  75  N.  W.  1120 232 

v.  Kenyon,  1  Daly  (N.  Y.)  132 53 

v.  Lancaster  Mills,  19  C.  C.  A.  88,  71  Fed.  481 222,  239 

V.  Railroad  Co.,  63  Fed.  200 236,  239 

93  Iowa,  248,  61  N.  W.  967 - 328 

103  Iowa.  649,  72  N.  W.  783 51 

L.  R.  5  Q.  B.  22G 206 


CASES  CITED. 

Page 

Thomas  v.  Railroad  Co.,  72  Mich.  355,  40  N.  W.  463 1ST 

14  U.  C.  Q.  B.  389 271 

101  U.  S.  71 209- 

v.  Railroad  Corp.,  10  Mete.  (Mass.)  472 216,  282 

v.  Winchester,  6  X.  Y.  397 370 

Thompson  v.  Banking  Co.,  54  Ga.  509 84 

v.  Bowie,  4  Wall.  463 100 

v.  Edward  P.  Allis  Co.,  89  Wis.  523,  62  X.  W.  527 10T 

v.  Inhabitants,  7  Pick.  (Mass.)  188  75 

v.  Railroad  Co.,  70  Minn.  219,  72  X.  W.  962 85 

51  Mo.  190 81 

22  Mo.  App.  321 251 

110  X.  Y.  636,  17  X.  E.  690 324,  325,  328- 

v.  Rapid-Transit  Co.,  16  Utah,  281,  52  Pac.  92 38,  52,  67 

v.  State,  3  Ind.  App.  371,  28  X.  E.  996 .382 

v.  Truesdale,  61  Minn.  129,  63  X.  W.  259 199- 

v.  Village  of  Saratoga  Springs,  22  App.  Div.  186,  47  N.  Y.  Supp.  1032. .  434 

Thorogood  v.  Bryan,  8  C.  B.  115 56,  57,  61 

Thorp  v.  Minor,  100  X.  C.  152,  13  S.  E.  702 173 

v.  Railroad  Co.,  61  Vt.  378,  17  Atl.  791 19£ 

Thorpe  v.  Railroad  Co.,  76  X.  Y.  402 155 

Thuringer  v.  Railroad  Co.,  82  Hun,  33,  31  N.  Y.  Supp.  419 26,  303- 

Thurston  v.  Railroad  Co.,  4  Dill.  321.  Fed.  Gas.  Xo.  14,019 192-194 

Thyng  v.  Railroad  Co.,  156  Mass.  13,  30  X.  E.  169 151 

Tibbetts  v.  Railroad  Co.,  62  Me.  437 166 

Tierney  v.  Railroad  Co.,  85  Hun,  146,  32  X.  Y.  Snpp.  627 129- 

33  Minn.  311,  23  N.  W.  229 141 

76  X.  Y.   305 233 

Tift  v.  Jones,  52  Ga.  538 53 

Tigress,  The,  Brown  &  L.  45 298 

Tilley  v.  Railroad  Co.,  24  X.  Y.  471,  29  X.  Y.  252 403,  405,  406,  408,  411 

Tillman  v.  Fletcher,  78  Tex.  673,  15  S.  W.  161 382" 

Tilton  v.  Railroad  Co.,  169  Mass.  253.  47  X.  E.  998 331 

Timlin  v.  Oil  Co.,  126  X.  Y.  514.  27  X.  E.  786 314 

Tindley  v.  City  of  Salem,  137  Mass.  171 427,  453- 

Tinker  v.  Railroad  Co.,  71  Hun,  431,  24  X.  Y.  Supp.  977 174 

Tinsman  v.  Railroad  Co.,  26  X.  J.  Law,  148 424 

Tissue  v.  Railroad  Co.,  33  Alb.  Law  J.  284 113- 

112  Pa.  St.  91,  3  Atl.  667 89- 

Titcomb  v.  Railroad  Co.,  12  Allen  (Mass.)  254 24 

Tobias  v.  Railway  Co.,  103  Mich.  330,  61  N.  W.  514 337 

166  Pa.  St.  354,  31  Atl.  120 340 

Tobin  v.  Cable  Co.  (Cal.)  34  Pac.  124 38 

v.  Railroad  Co.,  59  Me.  183 211 

Todd  v.  City  of  Chicago,  18  111.  App.  565 44T 

v.  City  of  Troy,  61  X.  Y.  506   ' 437,  438 

v.  Cochell,  17  Cal.  97 319" 

v.  Flight.  9  C.  B.  (X.  S.)  377 313,  314 

v.  Havlin,  72  Mo.  App.  565 158- 


-690  CASES  CITED. 

Page 

Todd  v.  Eailroad  Co.,  3  Allen  (Mass.)  18 190 

Toledo,  P.  &  W.  R.  Co.  v.  Bray,  57  111.  514 342 

v.  Conroy,  68  111.  560 200 

v.  Endres,  57  111.  App.  69 356 

v.  Merriman,  52  111.  123 293 

v.  Pindar,  53  111.  447 352,  355 

Toledo,  W.  &  W.  R.  Co.  v.  Apperson,  49  111.  480 206 

v.  Beggs,  85  111.  80  5,  196 

v.  Brooks,  81  111.  245 46,  195,  196 

v.  Fredericks,  71  111.  294 110 

v.  Grable,  88  111.  441 66 

v.  Grush,  67  111.  262 208 

v.  Hamilton,  76  111.  393   222 

v.  Hammond,  33  Ind.  379,  382 269,  270 

v.  Harmon,  47  111.  298 325 

v.  Ingraham,  77  111.  309  117 

v.  Maine,  67  111.  298 324 

v.  Muthersbaugh,  71  111.  572 11 

v.  O'Connor,  77  111.  391  394 

v.  Thompson,  71  111.  434 222 

Toledo  &  C.  S.  Ry.  Co.  v.  Eder,  45  Mich.  329,  7  X.  W.  898 345 

Toledo  &  O.  C.  Ry.  Co.  v.  Dages,  57  Ohio  St.  38,  47  N.  E.  1039 272 

Toledo  &  W.  Ry.  Co.  v.  Goddard,  25  Ind.  185 55,  332 

Tompkins  v.  Railroad  Co.,  66  Cal.  163,  4  Pac.  1165 57,  207 

Tonawanda  R.  Co.  v.  Munger,  5  Denio  (N.  Y.)  255 2,  35,  348 

Toncray  v.  Dodge  Co.,  33  Neb.  802,  51  N.  W.  235 388 

Toomey  v.  Sanborn,  146  Mass.  28,  14  N.  E.  921 50 

Torbush  v.  City  of  Norwich,  38  Conn.  225 450 

Torpey  v.  Williams,  3  Daly  (N.  Y.)  162 270 

Torpy  v.  Railway  Co.,  20  U.  C.  Q.  B.  446 189 

Totten  v.  Phipps,  52  N.  Y.  354 316 

Tourtellot  v.  Rosebrook,  11  Mete.  (Mass.)  460 349,  350 

Towanda  Coal  Co.  v.  Heeman,  86  Pa.  St.  418 174 

Tower  v.  Railroad  Co.,  7  Hill  (N.  Y.)  47 218,  277 

Townley  v.  Railroad  Co.,  53  Wis.  626,  11  N.  W.  55 327 

Town  of  Albion  v.  Hetrick,  90  Ind.  545 57,  86 

Town  of  Boswell  v.  Wakley,  149  Ind.  64,  48  N.  E.  637 432 

Town  of  Centerville  v.  Woods,  57  Ind.  192 26 

Town  of  Kentland  v.  Hagen  (Ind.  App.)  46  N.  E.  43 432 

Town  of  Knightstown  v.  Musgrove,  116  Ind.  121,  18  N.  E.  452 59,  60 

Town  of  Monroe  v.  Lumber  Co.  (N.  H.)  39  Atl.  1019 319 

Town  of  Salem  v.  Walker,  16  Ind.  App.  687,  46  N.  E.  90 87,  434 

Town  of  Waltham  v.  Kemper,  55  111.  346 426 

Town  of  Williamsport  v.  Lisk  (Ind.  App.)  52  N.  E.  628 432 

Town  of  Worthington  v.  Morgan,  17  Ind.  App.  603,  47  N.  E.  235 432 

Towns  v.  Railway  Co.,  55  Am.  Rep.  54)8,  37  La.  Ann.  632 147 

21  N.  H.  364 342 

Townsend  v.  Railroad  Co.,  56  N.  Y.  295,  301 185,  186,  198 

v.  Wathen,  9  East,  277 310 


CASES  CITED.  591 

Page 

Townshend  v.  Gray,  62  Vt  373,  19  Atl.  635 378 

Toy  v.  Railroad  Co.  (Sup.)  56  X.  Y.  Supp.  182 248 

Trafford  v.  Express  Co.,  8  Lea  (Tenn.)  96 404 

Transfer  Co.  v.  Kelly,  36  Ohio  St.  86 57 

Transportation  Co.  v.  City  of  Chicago,  99  U.  S.  635 439 

Trask  v.  Railroad  Co.,  63  Cal.  96 146 

v.  Shotwell,  41  Minn.  66,  42  N.  W.  699 48 

Trent  Xav.  Co.  v.  Ward,  3  Esp.  127 226,  228 

Trezona  v.  Railway  Co.,  107  Iowa,  22,  77  N.  W.  486 183,  196,  199 

Trimble  v.  Machine  Works,  172  Mass.  150,  51  X.  E.  463 138 

v.  Railroad  Co.,  39  App.  Div.  403,  57  X.  Y.  Supp.  437 272 

Trinity  &  S.  Ry.  Co.  v.  O'Brien  (Tex.  Civ.  App.)  46  S.  W.  389 208,  363 

Tritz  v.  Kansas  City,  84  Mo.  632  454 

Trotter  v.  Furniture  Co.  (Tenn.  Sup.)  47  S.  W.  425 121 

Trout  v.  Railroad  Co.,  23  Grat.  (Va.)  619 343 

Trow  v.  Railroad  Co.,  24  Vt.  487 51,  82,  338 

v.  Thomas,  70  Vt.  580,  41  Atl.  652 63,  406 

Troxler  v.  Railway  Co.,  122  X.  C.  902,  30  S.  E.  117 151 

Trustees  of  Village  of  Canandaigua  v.  Foster,  156  X.  Y.  354,  50  N.  E.  971. .  311 

Tubervil  r.  Stamp,  1  Salk.  13 349 

Tucker  v.  Bradley,  15  Conn.  46 381 

v.  Duncan,  9  Fed.  867 , 42 

v.  Railroad  Co.,  11  Misc.  Rep.  366,  32  X.  Y.  Supp.  1 223 

124  X.  Y.  308,  26  X.  E.  916 66 

Tuel  v.  Weston,  47  Vt.  634 158 

Tuff  v.  Warman,  2  C.  B.  (X.  S.)  740 51,  338 

5  C.  B.  (N.  S.)  573 35 

Tuller  v.  Talbot.  23  111.  357 203 

Tunnel  v.  Pettijohn,  2  Har.  (Del.)  48 263 

Tupper  v.  Clark,  43  Vt.  200 364 

Turner  v.  Buchanan,  82  Ind.  147 40 

v.  City  of  Xewburgh,  109  X.  Y.  301,  16  X.  E.  344 447 

v.  Craighead,  83  Hun,  112,  31  X.  Y.  Supp.  3G9 364 

v.  Haar,  114  Mo.  335,  ?1  S.  W.  737 23 

v.  Lumber  Co.,  119  N.  C.  387,  26  S.  E.  23 106 

v.  Railroad  Co.,  20  Mo.  App.  632 295 

40  W.  Va.  675,  22  S.  E.  83 119 

v.  Thomas,  71  Mo.  596 309 

Tutein  v.  Hurley,  98  Mass.  211 11 

Tuttle  v.  Railway  Co.,  122  U.  S.  189,  7  Sup.  Ct.  1166 116 

Tutwiler  v.  Railway  Co.,  95  Va.  443,  28  S.  E.  597 356 

Twombly  v.  Leach,  11  Cush.  (Mass.)  397 377,  378 

Twomley  v.  Railroad  Co.,  69  N.  Y.  158 41 

Tj  ler  v.  Ricamore,  87  Va.  466,  12  S.  E.  799 23 

Tyly  v.  Morrice,  Carth.  489 259 

Tyson  v.  Railroad  Co.,  61  Ala.  554 145 


592  CASES  CITED. 

u 

Page- 

Ule-ry  v.  Jones,  81  111.  403 361 

Umback  v.  Railway  Co.,  83  Ind.  191 91 

Underbill  v.  City  of  Manchester,  45  N.  H.  214 452 

Underwood  v.  Hewson,  1  Strange,  596 367 

v.  Waldron,  33  Mich.  232 51,  338- 

Unger  v.  Railway  Co.,  51  N.  Y.  497 2 

Union  Brass  Mfg.  Co.  v.  Lindsay,  10  111.  App.  583 313 

Union  Exp.  Co.  v.  Graham,  26  Ohio  St.  595 212,  220,  239- 

v.  Ohleman,  92  Pa.  St.  323 283 

Union  Mfg.  Co.  v.  Morrissey,  40  Ohio  St.  148 120 

Union  Pac.  R.  Co.  v.  Callaghan,  6  C.  C.  A.  205,  56  Fed.  988 18,  19- 

v.  Doyle,  50  Neb.  555.  70  N.  W.  43 132,  148 

T.  Dunden,  37  Kan.  1,  14  Pac.  501 409,  410 

v.  Ericson,  41  Neb.  1,  59  N.  W.  347 94 

v.  Evans,  52  Neb.  50,  71  N.  W.  1062 208 

v.  Fort,  17  Wall.  554 123 

v.  Jarvi,  3  C.  C.  A.  433,  53  Fed.  65 94 

v.  Lapsley's  Adni'r,  2  C.  C.  A.  149,  51  Fed.  174 60 

v.  Lipprand,  5  Kan.  App.  484,  47  Pac.  625 87 

v.  McCollum,  2  Kan.  App.  319,  43  Pac.  97 15 

v.  McDonald,  152  U.  S.  262,  14  Sup.  Ct.  619 306 

v.  Mitchell,  56  Kan.  324,  43  Pac.  244 185 

v.  Nichols,  8  Kan.  505 195,  196 

v.  Rainey,  19  Colo.  225,  34  Pac.  986 238 

v.  Ray,  46  Neb.  750,  65  N.  W.  773 359 

v.  Rollins,  5  Kan.  167,  182 80 

v.  Sue,  25  Neb.  772,  41  N.  W.  801 208 

v.  Vincent  (Neb.)  78  N.  W.  457 290 

v.  Young,  57  Kan.  168,  45  Pac.  580 70 

Union  Railway  &  Transit  Co.  v.  Schacklett,  19  111.  App.  145 207 

Union  Ry.  &  Transp.  Co.  v.  Shacklet,  119  111.  232,  10  N.  E.  896 416 

Union  Show  Case  Co.  v.  Blindauer,  75  111.  App.  358 96 

Union  Steamboat  Co.  v.  Knapp,  73  -111.  506 282,  285 

Union  S.  S.  Co.  v.  Claridge  [1894]  App.  Cas.  185,  6  Reports,  434 157 

Union  Stock-Yards  Co.  v.  Conoyer,  41  Neb.  617,  59  N.  W.  950 85 

v.  Goodwin  (Neb.)  77  N.  W.  357 96 

Union  Warehouse  Co.  v.  Prewitt's  Adm'r  (Ky.)  50  S.  W.  964 394 

U.  S.  v.  Railroad  Co.,  17  Wall.  322 424 

United  States  Exp.  Co.  v.  Backman,  28  Ohio  St.  144 215,  220,  239,  249 

v.  Haines,  67  111.  137 295 

v.  Hammer,  21  Ind.  App.  186,  51  N.  E.  953 283 

v.  Harris,  51  Ind.  127 '. 250 

v.  Keefer,  59  Ind.  263 284 

v.  Kountze,  8  Wall.  342 222 

v.  McCluskey,  77  111.  App.  56 37 

v.  Root,  47  Mich.  231,  10  N.  W.  351 237 


CASES  CITED.  593 

V 

Page- 
Vail  v.  Railroad  Co.,  63  Mo.  230 227 

Vale  v.  Bliss,  50  Barb.  (N.  Y.)  318,  358 3091 

Van  Bergen  v.  Van  Bergen,  3  Johns.  Ch.  (N.  Y.)  282 318- 

Van  Brunt  v.  Railroad  Co.,  78  Mich.  530,  44  N.  W.  321 415 

Van  Buskirk  v.  Roberts,  31  N.  Y.  601 182,  198,  210 

Vandenburgh  v.  Truax,  4  Denio  (N.  Y.)  464 54,  352 

Vanderplank  v.  Miller,  1  Moody  &  M.  169 57 

Vanderwerken  v.  Railroad  Co.,  6  Abb.  Prac.  (N.  Y.)  239 415 

Vandewater  v.  Railroad  Co.,  74  Hun,  32,  26  N.  Y.  Supp.  397 326,  329 

135  N.  Y.  583,  32  N.  E.  636 324,  325 

v.  Williamson,  13  Phila.  (Pa.)  140 387 

Van  Dusan  v.  Railway  Co.,  97  Mich.  439,  56  N.  W.  848 201 

Van  Dusen  v.  Letellier,  78  Mich.  492,  44  N.  W.  572 137 

Vanduzer  v.  Railway  Co.,  58  N.  J.  Law,  8,  32  Atl.  376 345 

Van  Hoosear  v.  Town  of  Wilton,  62  Conn.  106,  25  Atl.  457 443 

Van  Horn  v.  City  of  Des  Moines,  63  Iowa,  447,  19  N.  W.  293 449,  450 

v.  Kermit,  4  E.  D.  Smith  (N.  Y.)  453 269,  275,  289 

v.  Railway  Co.,  63  Iowa,  67,  18  N.  W.  679 340 

Vankirk  v.  Railroad  Co.,  76  Pa.  St.  66 200,  201 

Van  Leuven  v.  Lyke,  1  N.  Y.  515 361,  363 

Van  Lien  v.  Mfg.  Co.,  14  Abb.  Prac.  (N.  S.)  74 35 

Van  Loan  v.  Village  of  Lake  Mills,  88  Wis.  430,  60  N.  W.  710 437 

Van  Natta  v.  PoAver  Co.,  133  Mo.  13,  34  S.  W.  505 68 

Van  Pelt  v.  City  of  Davenport,  42  Iowa,  308 429,  430 

Van  Santvoord  v.  St.  John,  6  Hill  (N.  Y.)  157 294 

Van  Skike  v.  Potter,  53  Neb.  28,  73  N.  W.  295 376 

Van  Steenburgh  v.  Tobias,  17  Wend.  (N.  Y.)  562 167 

Van  Winter  v.  Henry  Co..  61  Iowa,  684,  17  N.  W.  94 447 

Varnum  v.  Martin,  15  Pick.  (Mass.)  440 373. 

Vaughan  v.  Railroad  Co.,  3  Hurl.  &  N.  743 359,  360 

5  Hurl.  &  N.  679,  687 3,  354 

Vaught  v.  Board,  101  Ind.  123 456 

Vaughtman  v.  Town  of  Waterloo,  14  Ind.  App.  649,  43  N.  E.  476 426 

Veazie  v.  Railroad  Co.,  49  Me.  119 25 

Vedder  v.  Fellows,  20  N.  Y.  126 196 

Veeder  v.  Village  of  Little  Falls,  100  N.  Y.  343,  3  N.  E.  306 4 

Veerhusen  v.  Railway  Co.,  53  Wis.  689,  11  N.  W.  433 345 

Vennall  v.  Garner,  1  Comp.  &  M.  21 37 

Verdell  v.  Commercial  Co.,  115  Cal.  517,  47  Pac.  364 107 

Verner  v.  Sweitzer,  32  Pa.  St.  208 215,  216 

Vick  v.  Railroad  Co.,  95  N.  Y.  267. 93,  190 

Vicksburg  &  M.  R.  Co.  v.  Ragsdale,  46  Miss.  458 236 

Vidette,  The,  34  Fed.  396 298 

Village  of  Coffeen  v.  Lang,  67  111.  App.  359 434 

Village  of  Culbertson  v.  Holliday,  50  Neb.  229,  69  N.  W.  853 87 

Village  of  Jefferson  v.  Chapman,  127  111.  438,  20  N.  E.  33 44S 

BAR.NEG.— 38 


594  CASES  CITED. 

Page 

Village  of  Noble  v.  Hanna,  74  111.  App.  564 434 

Village  of  Orleans  v.  Perry,  24  Neb.'  831,  40  N.  W.  417 37 

Village'of  Sciota  v.  Norton,  63  111.  App.  530 432 

Vincett  v.  Cook,  4  Hun  (N.  Y.)  318 46 

Vinton  v.  Railroad  Co.,  11  Allen  (Mass.)  304 175,  183,  192,  197 

Virginia  &  T.  R.  Co.  v.  Sayers,  26  Grat.  (Va.)  328 212,  239 

Voegeli  v.  Granite  Co.,  49  Mo.  App.  643 168 

Vogel  v.  City  of  New  York,  92  N.  Y.  10 447 

Voight  v.  Railway  Co.,  79  Fed.  561 '. 188 

Von  Wallhoffen  v.  Newcombe,  10  Hun  (N.  Y.)  236 373 

Vorbrich  v.  Mfg.  Co.,  96  Wis.  277,  71  N.  W.  434 120 

Vose  v.  Railway  Co.,  2  Hurl.  &  N.  728 189,  211 

Voss  v.  Car  Co.,  16  Ind.  App.  271,  43  N.  E.  20,  44  N.  E.  1010 278 

Vreeland  v.  Railroad  Co.,  109  Mich.  585,  67  N.  W.  905 330 

Vrooruan  v.  Lawyer,  13  Johns.  (N.  Y.)  339 363 


W 

Wabash  Paper  Co.  v.  Webb,  146  Ind.  303,  45  N.  IS.  474 91 

Wabash  R.  Go.  v.  Brown,  152  111.  484,  39  N.  E.  273 244,  249 

v.  Harris,  55  111.  App.  159 255,  256 

v.  Jones,  53  111.  App.  125 67 

v.  Kelley  (Ind.  Sup.)  52  N.  E.  152 89 

v.  Kingsley,  177  111.  558,  52  N.  E.  931 195 

v.  McDaniels,  107  U.  S.  454,  2  Sup.  Ct.  932 97 

v.  Perbex,  57  111.  App.  62 347 

Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Deardorff,  14  111.  App.  401 109 

v.  Jaggerman,  115  111.  407,  4  N.  E.  641 293 

v.  Locke,  112  Ind.  404,  14  N.  E.  391 11 

v.  Shacklet,  105  111.  364 57,  86 

Wabash  Western  Ry.  Co.  v.  Brow,  13  C.  C.  A.  222,  65  Fed.  941 98 

Wachsmuth  v.  Crane  Co.  (Mich.)  76  N.  W.  4.97 96 

Waco  Artesian  Water  Co.  v.  Cauble  (Tex.  Civ.  App.)  47  S.  W.  538 32 

Wade  v.  Lumber  Co.,  20  C.  C.  A.  515,  74  Fed.  517 217 

v.  Power  Co.,  51  S.  C.  296,  29  S.  E.  233 41 

v.  Wheeler,  3  Lans.  (N.  Y.)  201 279 

Waggener  v.  Town  of  Point  Pleasant,  42  W.  Va.  798,  26  S.  E.  352 432 

Wagner  v.  Haak,  170  Pa.  St.  495,  32  Atl.  1087 1G9 

v.  Railway  Co.,  97  Mo.  512,  10  S.  W.  486 188 

Wahl  v.  Shoulders,  14  Ind.  App.  665,  43  N.  E.  458 82 

Wakefield  v.  Newell,  12  R.  I.  75 438 

Walcott  v.  Inhabitants,  1  Allen  (Mass )  101 444 

Wald  v.  Railroad  Co.,  162  111.  545,  44  N.  E.  888 23,  226,  274. 

Waldele  v.  Railroad  Co.,  4  App.  Div.  549,  38  N.  Y.  Supp.  1009 333 

Waldron  v.  Railroad  Co.,  1  Dak.  351,  46  N.  W.  456 270,  272 

Walker  v.  Boiling,  22  Atl.  294 "90 

v.  Gillett,  59  Kan.  214,  52  Pac.  442 147 

v.  Hallock,  32  Ind.  239 450 


CASES  CITED.  595 

Page 

Walker  v.  Herron,  22  Tex.  55 366 

v.  Johnson,  28  Minn.  147,  9  N.  W.  632 168 

v.  Lumber  Co.,  86  Me.  191,  29  Atl.  979 43 

v.  McXeill,  17  Wash.  582,  50  Pac.  518 405 

v.  Railway  Co.,  15  Mo.  App.  333 199 

v.  Westfield,   39  Vt.   246 84 

v.  Wonderlick,  33  Neb.  504,  50  N.  W.  445 382 

Wall  Y.  Town  of  Highland,  72  Wis.  435,  39  X.  W.  560 42 

Wallace  v.  Cannon,  38  Ga.  199 393 

v.  City  of  Muscatine,  4  G.  Greene  (Iowa)  373 425 

v.  Express  Co.,  134  Mass.  95 35,  47 

v.  Mayor,  etc.,  2  Hilt.  (X.  Y.)  440 7 

v.  Stevens,  74  Tex.  559,  12  S.  W.  283 418 

Waller  v.  City  of  Dubuque,  69  Iowa,  541,  29  N.  W.  456 448 

v.  Railway  Co.,  59  Mo.  App.  410 25 

1  Mo.  App.  Rep'r,  56 20 

Wallingford  v.  Railroad  Co.,  26  S.  C.  258,  2  S.  E.  19 219 

Wain  v.  Beaver,  161  Pa.  St.  605,  29  Atl.  114 373 

Walpole's  Adm'r  v.  Carlisle,  32  Ind.  415 374 

W'alrath  v.  Redfleld,  11  Barb.  (X.  Y.)  368 7 

WTalsh  v.  City  of  Buffalo,  17  App.  Div.  112,  44  N.  Y.  Supp.  942 434 

v.  The  H.  M.  Wright,  1  Xewb.  494,  Fed.  Cas.  Xo.  17,115 275,  277 

v.  Railroad  Co.,  171  Mass.  52,  50  X.  E.  453 328,  332,  333 

27  Minn.  367,  8  X.  W.  145 109 

145  X.  Y.  301,  39  N.  E.  1068 49,  50,  69,  306,  307 

42  Wis.  23 175,  210 

v.  Sayre,  52  How.  Prac.  (X.  Y.)  335 378 

Waltemeyer  v.  Kansas  City,  71  Mo.  App.  354 434 

Walter  v.  Railroad  Co.,  6  App.  D.  C.  20 32 

Walters  v.  Light  Co.  (Colo.  App.)  54  Pac.  960 40,  67 

v.  Railroad  Co.,  41  Iowa,  71,  76 62,  63.  73,  395 

Walthers  v.  Railway  Co.,  72  111.  App.  354 208 

Walton  v.  Booth,  34  La.  Ann.  913 370 

Wanamaker  v.  City  of  Rochester,  63  Hun,  625,  17  X.  Y.  Supp.  321 448 

Ward  v.  Brown,  64  111.  307 362 

v.  Fibre  Co.,  154  Mass.  419,  28  N.  E.  299 155 

V.  Mfg.  Co.,  123  X.  C.  248,  31  S.  E.  495 87 

v.  Railway  Co.,  85  Wis.  601,  55  N.  W.  771 77 

v.  Yanderbilt,  4  Abb.  Dec.  (N.  Y.)  521 210 

v.  Weeks,  7  Bing.  211 11 

Warden  v.  Greer,  6  Watts  (Pa.)  424 234 

v.  Railroad  Co.,  137  Mass.  204 117 

Warn  v.  Railroad  Co..  80  Hun,  71,  29  N.  Y.  Supp.  897 102 

Warner  v.  Chamberlain,  7  Houst  18,  30  Atl.  638 364 

v.  Pacific  Co.,  113  Cal.  105,  45  Pac.  187 170 

v.  Railroad  Co.,  22  Iowa,  166 274 

44  X.  Y.  465 100,  326 

94  X.  C.  250 403 

v.  Transportation  Co.,  5  Rob.  (X.  Y.)  490 231 


596  CASES  CITED. 

Page 

Warren  v.  Englehart,  13  Neb.  283,  13  N.  W.  401 403,  404 

v.  Railroad  Co.,  8  Allen  (Mass.)  227 54,  178,  208,  334 

59  Mo.  App.  367,  1  Mo.  App.  Rep'r,  37 342,  34a 

Warren  Bank  v.  Bank,  10  Gush.  (Mass.)  582 387 

Wash  v.  Mead,  8  Hun  (X.  Y.)  387 303 

Washington,  The,  and  The  Gregory,  9  Wall.  513 5» 

Washington  S.  Ry.  Co.  v.  Lacey,  94  Va.  460,  26  S.  E.  834 31 

Washington  &  G.  R.  Co.  r.  Gladmon,  15  Wall.  401 67,  84 

v.  Harmon's  Adm'r,  147  U.  S.  571,  13  Sup.  Ct.  557 181,  205- 

v.  Hickey,  5  App.  D.  C.  436 41 

v.  Patterson,  9  App.  D.  C.  423 177,  179 

Wasmer  v.  Railroad  Co.,  80  N.  Y.  212 44 

Waterbury  v.  Railroad  Co.,  17  Fed.  671 188,  190,  191 

104  Iowa,  32,  73  N.  W.  341 208- 

Water  Co.  v.  Ware,  16  Wall.  566 174 

Waters  v.  Fuel  Co.,  52  Minn.  474,  55  N.  W.  52 161 

v.  Railroad  Co.  (N.  J.  Sup.)  43  Atl.  670 356- 

Watkins  v.  Railroad  Co.,  21  D.  C.  1 182 

Watkinson  v.  Bennington,  12  Vt.  404 381 

v.  Laughton,  8  Johns.  (N.  Y.)  213 229 

Watson  v.  Duykinck,  3  Johns.  (N.  Y.)  335 210. 

v.  Muirhead,  57  Pa.   St.   161 373,  374 

v.  Railroad  Co.,  92  Ala,  320,  8  South.  770 179 

3  Eng.  Law  &  Eq.  497 295 

66  Iowa,  164,  23  N.  W.  380 211 

42  Minn.  46,  43  X.  W.  904 202 

58  Tex.  434 94 

Watt  v.  Railroad  Co.,  23  Nev.  154,  44  Pac.  423 354,  355 

46  Pac.  52 356 

Watts  v.  Hart,  7  Wash.  178,  34  Pac.  423 91 

Way  v.  Railway  Co.,  64  Iowa,  48,  19  N.  W.  828 196,  199 

Weaver  v.  Ward,  Hob.  134 367. 

Webb  v.  Board  (Mich.)  74  N.  W.  734 443,  453 

v.  Railroad  Co.,  49  N.  Y.  420 14,  15,  351 

97  N.  C.  387,  2  S.  E.  440 149 

7  Utah,  363,  26  Pac.  981 130,  411 

Webber  v.  Piper,  38  Hun  (N.  Y.)  353 121 

Weber  v.  Railroad  Co.,  20  App.  Div.  292,  47  N.  Y.  Supp.  7 162 

54  Kan.  389,  38  Pac.  569 335 

58  N.  Y.  451 323,  325,  330 

Webster  v.  Quimby,  8  N.  H.  382 382 

v.  Railroad  Co.,  161  Mass.  298,  37  N.  E.  165 178 

38  N.  Y.  260 54,  57 

v.  Symes,  109  Mich.  1,  66  X.  W.  580 : 14: 

Weed  v.  Earner,  45  N.  Y.  344 283 

v.  Barney,  45  N.  Y.  344  283,  288 

v.  Bond,  21  Ga.  195 374 

v.  Railroad  Co.,  17  X.  Y.  362 210 

19  Wend.  (X.  Y.)  534 270,  293- 


CASES  CITED.  597 

Page 

Weed  v.  Village  of  Ballston  Spa,  76  N.  Y.  329 44 

Weeks  v.  Railroad  Co.,  32  La.  Ann.  615 394 

72  N.  Y.  50,  56 275 

Wehmann  v.  Railway  Co.,  58  Minn.  22,  59  N.  W.  546 252,  291 

Weick  v.  Lander,  75  111.  93 27,  45 

Weidner  v.  Rankin,  26  Ohio  St.  522 400 

Weightman  v.  Corporation  of  Washington,  1  Black,  39 425,  429,  454,  455 

v.  Railway  Co.,  70  Miss.  563,  12  South.  586 205 

Weiller  v.  Railroad  Co.,  134  Pa.  St.  310,  19  Atl.  702 249 

Weintz  v.  Kramer,  44  La.  Ann.  35,  10  South.  416 386 

Weir  v.  Express  Co.,  5  Phila.  (Pa.)  355 250,  251 

Weise  v.  Smith,  3  Or.  445 320 

WTeisser's  Adm'rs  v.  Denison,  10  N.  Y.  68 56 

Weitzman  v.  Railroad  Co.,  33  App.  Div.  585,  53  N.  Y.  Supp.  905 63 

Welch  v.  Railroad  Co.,  41  Conn.  333 238 

v.  Wesson,  6  Gray  (Mass.)  505 46 

Weldon  v.  Railroad  Co.,  3  App.  Div.  370,  38  N.  Y.  Supp.  206 60 

43  Atl.  (Del.  Sup.)  156 68 

Welfare  v.  Railway  Co.,  L.  R.  4  Q.  B.  693 314 

Wellcome  v.  Inhabitants,  51  Me.  313 25 

Weller  v.  Railway  Co.,  L.  R.  9  C.  P.  126 180 

Welles  v.  Hutchinson,  2  Root  (Conn.)  85 388,  389 

Wellman  v.  Borough  of  Susquehanna  Depot,  167  Pa.  St.  239,  31  Atl.  566. ..     18 

v.  Miner,  19  Misc.  Rep.  644,  44  N.  Y.  Supp.  417 155 

Wells  v.  City  of  Brooklyn,  9  App.  Div.  61,  41  N.  Y.  Supp.  143 436 

v.  Coe,  9  Colo.  151,  11  Pac.  50 / 146 

v.  Express  Co.,  55  Wis.  23,  11  N.  W.  537,  12  N.  W.  441 297 

v.  Navigation  Co.,  8  N.  Y.  375 245 

v.  Railroad  Co.,  25  App.  Div.  365,  49  N.  Y.  Supp.  510 177 

24  N.   Y.   181 245 

7  Utah,  482,  27  Pac.  688 , 405 

v.  Sibley,  56  Hun,  644,  9  N.  Y.  Supp.  343 393 

v.  Steamship  Co.,  4  Cliff.  228,  Fed.  Gas.  No.  17,401 232 

Wells  &  French  Co.  v.  Gortorski,  50  111.  App.  445 112 

Welsh  v.  Parrish,  148  Pa.  St.  599,  24  Atl.  86 155,  161 

v.  Railroad  Co.,  10  Ohio  St.  65 218,  233,  245,  262 

v.  Village  of  Rutland,  56  Vt.  228 453 

v.  Wilson,  34  Minn.  92,  24  N.  W.  327 382 

Welty  v.  Railroad  Co.,  105  Ind.  55,  4  N.  E.  410 55,  348 

Wenona  Coal  Co.  v.  Holmquist,  152  111.  581,  38  N.  E.  946 126 

Wentz  v.  Railway  Co.,  3  Hun  (N.  Y.)  241 199 

Wertheimer  v.  Saunders,  95  Wis.  573,  70  N.  W.  824 316 

Wesley  v.  City  of  Detroit  (Mich.)  76  N.  W.  104 434 

West  v.  The  Berlin,  3  Iowa,  532  227 

v.  Martin,  31  Mo.  375 r 36 

v.  The  Uncle  Sam,  1  McAll.  505,  Fed.  Gas.  No.  17,427 210 

Westbrook  v.  Railroad  Co.,  66  Miss.  560,  6  South.  321 67,  71 

Westchester  &  P.  R.  Co.  v.  Miles,  55  Pa.  St.  209 191,  194,  195 


598  CASES  CITED. 

Page 

West  Chicago  St.  R.  Co.  v.  Dooley,  76  111.  App.  424 411 

v.  Dwyer,  57  111.  App.  440 135 

v.  Feldstein,  169  111.  139,  48  N.  E.  193 87 

v.  Mabie,  77  111.  App.  176 416 

v.  Schenker,  78  111.  App.  592, 43 

v.  Walsh,    78  111.   App.   595 180 

Westcott  v.  P'argo,  61  N.  Y.  254,  542 249,  258 

v.  Railroad  Co.,  61  Vt.  438,  17  Atl.  745 403,  415,  416 

Westerberg  v.  Railroad  Co.,  142  Pa.  St.  471,  21  Atl.  878 395 

Westerfield  v.  Levis,  43  La.  Ann.  63,  9  South.  52 71,  395 

Western  Coal  &  Mining  Co.  v.  Berberich,  36  C.  C.  A.  364,  94  Fed.  329 95 

Western  College  of  Homeopathic  Medicine  v.  City  of  Cleveland,  12  Ohio 

St.  375 425,  449,  452 

Western  Maryland  R.  Co.  v.  Kehoe,  86  Md.  43,  37  Atl.  709 339 

Western  Ry.  Co.  v.  Harwell,  97  Ala.  341,  11  South.  781 296 

Western  Ry.  of  Alabama  v.  Walker,  113  Ala.  267,  22  South.  182 203 

v.  Williamson,  114  Ala.  131,  21  South,  827 84 

Western  Sav.  Fund  Soc.  of  Philadelphia  v.  City  of  Philadelphia,  31  Pa.  St. 

175,  189 426,  449 

Western  Transp.  Co.  v.  Barber,  56  N.  Y.  544 . . '.  297 

v.  Downer,  11  Wall.  129 219 

v.  Newhall,  24  111.  466 281 

Western  Union  Tel.  Co.  v.  Apple  (Tex.  Civ.  App.)  28  S.  W.  1022 86 

Western  &  A.  R.  Co.  v.  Adams,  55  Ga.  279 146 

v.  Cotton  Mills,  81  Ga.  522,  7  S.  E.  916 231,  253,  290 

v.  McElwee,  6  Heisk.  (Tenn.)  208 293,  295 

v.  Meigs,  74  Ga.  857 414 

v.  Rogers,  104  Ga.  224,  30  S.  E.  804 68 

v.  Young,  81  Ga.  397,  7  S.  E.  912 66 

West  Mahanoy  Tp.  v.  Watson,  112  Pa.  St.  574,  3  Atl.  866 11 

116  Pa.  St.  344,  9  Atl.  430 19 

Weston  v.  Railroad  €o.,  73  N.  Y.  595 304 

42  N.  Y.  Super.  Ct.  156 208 

Westville  Coal  Co.  v.  Milka,  75  111.  App.  638 116 

v.  Schwartz,  177  111.  272,  52  N.  E.  276 135 

Weymire  v.  Wolfe,  52  Iowa,  533,  3  N.  W.  541 77,  79 

Whalen  v.  Gaslight  Co.,  151  N.  Y.  70,  45  N.  E.  363 43,  82 

v.  Railroad  Co.,  58  Hun,  431,  12  N.  Y.  Supp.  527 334 

114  Mich.  512,  72  N.  W.  323 102 

75  Wis.  654,  44  N.  W.  849 66 

Whaley  v.  Bartlett,  42  S.  C.  454,  20  S.  E.  745 149 

Wheatley  v.  Railroad  Co.,  1  Marv.  305,  30  Atl.  660 146,  151 

Wheeler  v.  Brant,  23  Barb.  (N.  Y.)  324 363 

v.  City  of  Boone  (Iowa)  78  N.  W.  909 436 

v.  City  of  Worcester,  10  Allen  (Mass.)  591 25 

Wheeling  &  L.  E.  Ry.  Co.  v.  Koontz,  15  Ohio  Cir.  Ct.  R.  288 298 

Wheelock  v.  Railroad  Co.,  105  Mass.  203 333 

Whelan  v.  Railroad  Co.,  38  Fed.  15 60 

Whelton  v.  Railway  Co.  (Mass.)  52  N.  E.  1072 116,  138 


CASES  CITED.  599 

Page 

Wherry  v.  Railway  Co.,  64  Minn.  415,  67  X.  W.  223 335 

White  v.  Bond  Co.,  58  111.  298 426 

v.  France,  2  C.  P.  Div.  308 51 

v.  Humphrey,  11  Q.  B.  43 '. 288 

v.  Jameson,  L.  R.  18  Eq.  303 315 

v.  Maxcy,  64  Mo.  552 393,  415 

v.  Mitchell,  38  Mich.  390 298 

v.  Railroad  Co.,  136  Mass.  321 325 

19  Mo.  App.  400 295 

30  N.  H.  188 348 

115  N.  C.  631,  20  S.  E.  191 N 189 

v.  Reagan,  32  Ark.  281 374 

v.  Southern  Pac.  Co.  (Cal.)  54  Pac.  956 331 

v.  Wmnisimmet  Co.,  7  Gush.  (Mass.)  155,  156 216,  231 

v.  Yazoo  City,  27  Miss.  357 449 

Whitehead  v.  Anderson,  9  Mees.  &  W.  518 298 

Whitesell  v.  Hill  (Iowa)  66  N.  W.  894 m 377,  379 

Whitesides  v.  Russell,  8  Watts  &  S.  (Pa.)  44 219 

White  Water  R.  Co.  v.  Butler,  112  Ind.  598,  14  N.  E.  599 180 

Whitford  v.  Railroad  Co.,  23  X.  Y.  465,  469 405 

Whitmore  v.  Bowman,  4  G.  Greene  (Iowa)  148 216 

v.  The  Caroline,  20  Mo.  513 270 

v.  Paper  Co.,  91  Me.  297,  39  Atl.  1032,  40  Lawy.  Rep.  Ann.  377 316 

Whitney  v.  Car  Co.,  143  Mass.  243,  9  X.  E.  619 217,  278 

v.  Gross,  140  Mass.  232,  5  X.  E.  619 100 

y.  Lee,  8  Mete.  (Mass.)  91 31 

y.  Preston,  29  Xeb.  243,  45  X.  W.  619 383 

Whitney  &  Starrette  Co.  v.  O'Rourke,  172  III.  177,  50  X.  E.  242 118 

Whiton  y.  Railroad  Co.,  21  Wis.  310 401 

Whitsett  v.  Slater,  23  Ala.  626 381 

Whittaker  v.  City  of  Helena,  14  Mont.  124,  35  Pac.  904 60 

y.  Coombs,  14  111.  App.  498 105 

Whittington  y.  Pence  (Ky.)  38  S.  W.  843;    47  S.  W.  877 383 

Wibert  y.  Railroad  Co.,  12  X.  Y.  245 235,  236 

Wichita  Yal.  Ry.  Co.  v.  Swenson  (Tex.  Civ.  App.)  25  S.  W.  47 294 

Wichita  &  W.  R.  Co.  y.  Dayis,  37  Kan.  743,  16  Pac.  78 80 

Wiegand  y.  Railroad  Co.,  75  Fed.  370 258 

Wiggett  y.  Fox,  11  Exch.  832 129 

Wiggins  Ferry  Co.  y.  Railroad  Co.,  73  Mo.  389 293 

Wightman  y.  Railway  Co.,  73  Wis.  169,  40  X.  W.  689 199 

Wilcox  y.  Parmelee,  3  Sandf .  (X.  Y.)  610 224,  292 

v.  Railroad  Co.,  88  Hun,  263,  34  X.  Y.  Supp.  744 337 

39   X.   Y.   358 82,  340 

11  Tex.  Civ.  App.  487,  33  S.  W.  379 191 

Wild  v.  City  of  Paterson,  47  N.  J.  Law,  406,  1  Atl.  490 443 

v.  Railroad,  171  Mass.  245,  50  X.  E.  533 359 

Wilde  v.  Transportation  Co.,  47  Iowa,  247 256 

Wilder  v.  Railroad  Co.,  65  Me.  332 347 

y.  Stanley,  65  Vt.  145,  26  Atl.  189 19,  25 


600  CASES  CITED. 

Page 

Wilds  v.  Railroad  Co.,  29  N.  Y.  315,  328 330 

Wiley  v.  Railroad  Co.,  76  Hun,  29,  27  N.  Y.  Supp.  722 65 

Wilkinson  v.  Fairrie,  1  Hurl.  &  C.  633 305 

Willard  v.  Newbury,  22  Vt.  458 25 

v.  Pinard,  44  Vt.  34 37 

Willcox  v.  Hines,  100  Tenn.  524,  45  S.  W.  781 314 

100  Tenn.  538,  46  S.  W.  297 315 

Willet  v.  Railroad  Co.,  114  Mich.  411,  72  N.  W.  260 326 

Willetts  v.  Railroad  Co.,  14  Barb.  (N.  Y.)  585 73 

Willey  v.  Inhabitants,  61  Me.  569 13 

Williams  v.  Branson,  5  N.  C.  417 .- 216 

v.  East  India  Co.,  3  East,  192 369 

v.  Gibbs,  6  Nev.  &  M.  788 371 

v.  Gill,  122  N.  C.  967,  29  S.  E.  879 172 

v.  Grant,  1  Conn.  487 218,  222,  227 

v.  Hodges,  113  N.  C.  36,  18  S.  E.  83 298 

v.  Irrigation  Co.,  96  Gal.  14,  30  Pac.  961 163,  164 

v.  Mercer,  139  Mass.  141,  29  N.  E.  540 383 

v.  Moray,  74  Ind.  25 85 

v.  Nally  (Ky.)  45  S.  W.  874 379 

v.  Packet  Co.,  3  Cent.  Law  J.  400 275,  277 

v.  Railroad  Co.,  91  Ala.  635,  9  South.  77 393 

2    Mich.    259 35,  343 

119  Mo.  316,  24  S.  W.  782 91 

60  Tex.  205 62,  395 

54  Pac.  (Utah)  991 213 

v.  Vanderbilt,  28  N.  Y.  217 210 

v.  Webb,  22  Misc.  Rep.  513,  49  N.  Y.  Supp.  1111;   27  Misc.  Rep.  508, 

58  N.  Y.  Supp.  300 278 

Willis  v.  Armstrong  Co.,  183  Pa.  St.  184,  38  Atl.  621 18 

v.  City  of  Perry,  92  Iowa,  297,  60  N.  W.  727 86 

v.  Publishing  Co.  (R.  I.)  38  Atl.  947 18 

v.  Railway  Co.,  62  Me.  488 238 

120  N.  C.  508,  26  S.  E.  784 187 

122  N.  C.  905,  29  S.  E.  941 51,  102 

Willmott  v.  Railway  Co.,  106  Mo.  535,  17  S.  W.  490 205 

Wilmot  v.  Howard,  39  Vt  447 377 

Wilson  v.  Bumstead,  12  Neb.  1,  10  N.  W.  411 400 

v.  City  of  Troy,  60  Hun.  183,  14  N.  Y.  Supp.  721,  135  N7.  Y.  96,  32  N. 

E.  44    164 

v.  Hamilton,  4  Ohio  St.  722,  723 216,  231,  262,  266 

v.  Jefferson  Co.,  13  Iowa,  181 456 

v.  Linen  Co.,  50  Conn.  433 93,  146 

v.  Mayor,  etc.,  1  Denio  (N.  Y.)  595 428,  433,  450 

v.  Olano,  28  App.  Div.  448,  51  N.  Y.  Supp.  109 50,  304 

v.  Railroad  Co.,  94  Cal.  166,  29  Pac.  861 288 

21  Grat.  (Va.)  654,  671 182,  239 

56  Me.  60 274 

26  Minn.  278,  3  N.  W.  333 41,  202 


CASES  CITED.  601 

Page 

Wilson  v.  Railroad  Co.,  37  Minn.  326,  33  N.  W.  908 121 

97  X.   Y.  87 245 

132  Pa.  St.  27,  18  Atl.  1087 66 

51  S.  C.  79,  28  S.  E.  91 128,  149 

v.  Returning  Co.,  163  Mass.  315,  39  N.  E.  1039 105 

v.  Road  Co.,  83  Ind.  326 86 

v.  Russ,  20  Me.  421 372 

v.  Tucker,  3  Starkie,   154 373 

v.  White,  71  Ga.  506 163 

v.  Young,  58  Ark    593,  25  S.  W.  870 382 

Wiltse  v.  Town  of  Tilden,  77  Wis.  152,  46  N.  W.  234 403,  412,  416 

Winborne  v.  Mitchell,  111  N.  C.  13,  15  S.  E.  882 385 

Winch  v.  Conservators,  L.  R.  7  C.  P.  458 455 

Winey  v.  Railway  Co.,  92  Iowa,  622,  51  N.  W.  218 331 

Wing  v.  Railroad  Co.,  1  Hilt.  (X.  Y.)  641 222 

Wink  v.  Weiler,  41  111.  App.  336 171 

Winkler  v.  Fisher,  95  Wis.  355,  70  X.  W.  477 158 

Winn  v.  City  of  Lowell,  1  Allen  (.Mass.)  177 75,  336 

Winnt  v.  Railway  Co.,  74  Tex.  32,  11  S.  W.  907 410,  411 

Winpenny  v.  City  of  Philadelphia,  65  Pa.  St  136 320 

Winship  v.  Enfield,  42  X.  H.  197 83 

Winslow  v.  Railroad  Co.,  42  Vt.  700 287 

Winters  v.  Railway  Co.,  99  Mo.  509,  12  S.  W.  652 71 

Wise  v.  Morgan  (Tenn.  Sup.)  48  S.  W.  971 63,  65,  66,  369 

Wiseman  v.  Booker,  3  C.  P.  Div.  184 341 

Wiswell  v.  Doyle,  160  Mass.  42,  35  X.  E.  107 67,  72 

Witbeck  v.  Holland,  45  X.  Y.  13 282 

v.  Schuyler,  44  Barb.  (X.  Y.)  469 280 

Witherley  v.  Canal  Co.,  12  C.  B.  (X.  S.)  2,  8 35 

Withers  v.  Railway  Co.,  3  Hurl.  &  X.  969 23-25 

Witsell  v.  Railway  Co.,  120  X.  C.  557,  27  S.  E.  125 204 

Witting  v.  Railway  Co.,  101  Mo.  631,  14  S.  W.  743 219 

Wolf  v.  Express  Co.,  43  Mo.  421 222 

v.  Railroad  Co.,  55  Ohio  St.  517,  45  X.  E.  708 396 

v.  Water  Co.,  10  Gal.  541 32 

Wolfe  v.  Dorr,  24  Me.  104 381 

v.  Mersereau,  4  Duer    (X.  Y.)  473 160 

v.  Railway  Co.,  97  Mo.  473,  11  S.  W.  49 297 

Wolff  Mfg.  Co.  v.  Wilson,  46  111.  App.  381 25 

Wolford  v.  Mining  Co.,  63  Cal.  483 414 

Wolski  v.  Knapp,  Stout  &  Co.  Company,  90  Wis.  178,  63  X.  W.  87 106 

Wonder  v.  Railroad  Co.,  32  Md.  411 95,  148 

Wood  v.  Bartholomew,  122  X.  C.  177,  29  S.  E.  959 85 

v.  Clapp,  4  Sneed  (Tenn.)  65 376 

v.  Cobb,  13  Allen  (Mass.)  58 155 

v.  Crocker,  18  Wis.  345 218,  287 

v.  Graves,  144  Mass.  365,  11  X.  E.  567 383 

v.  Heiges,  83  Md.  257,  34  Atl.  872 91 

T.  Railroad  Co.,  49  Mich.  370,  13  X.  W.  779 181 


602  CASES  CITED. 

Page- 
Wood  v.  Railroad  Co.,  52  Mich.  402,  18  X.  TV.  124 109 

118  X.  C.  1056,  24  S.  E.  704 252 

42  S.  W.  (Ky.)  349 207 

27  Wis.   541 291 

v.  Village  of  Andes,  11  Hun  (X.  Y.)  543 76,  77 

Woodbridge  v.  Marks,  17  App.  Div.  139,  45  N.  Y.  Supp.  156 362 

Woodhull  v.  City  of  Xew  York,  76  Hun,  390,  28  X.  Y.  Supp.  120 442 

150  X.  Y.  450,  44  X.  E.  1038 443 

Woodman  v.  Railroad  Co.,  149  Mass.  335,  21  X.  E.  482 : 161,  163 

v.  Tufts,  9  X.   H.   88 318 

Woodruff  v.  Bowe,  136  Ind.  431,  34  X.  E.  1113 50 

Woodruff  Sleeping  &  Parlor  &  Coach  Co.  v.  Diehl,  84  Ind.  474 217 

Woods  v.  Devin,  13  111.  746 269 

Woodson  v.  Railway  Co.,  21  Minn.  60 353 

Woodward  v.  Aborn,  35  Me.  271 21,  23 

v.  Railroad  Co.,  1  Biss.  403,  Fed.  Cas.  Xo.  18,006 291,  292 

23  Wis.   400 403,  404,  416 

Woolf  v.  Beard,  8  Car.  &  P.  373 37 

v.  Chalker,  31  Conn.  121 363-305 

Woolheather  v.  Risley,  38  Iowa,  486 7£ 

Wooster  v.  Railway  Co.,  74  Iowa,  593,  38  X.  W.  425 51 

Worden  v.  Railroad  Co.,  72  Iowa,  201,  33  X.  W.  629 398 

76  Iowa,  310,  41  X.  W.  26 413 

Worlds  v.  Railroad  Co.,  99  Ga.  283,  25  S.  E.  646 109- 

Worley  v.  Railroad  Co.,  1  Handy  (Ohio)  481 400 

Wormell  v.  Railroad  Co.,  79  Me.  397,  10  Atl.  49 114,  115,  123,  14S 

Worinley  v.  Gregg,  65  111.  2ol 363 

Worth  v.  Edmonds,  52  Barb.  (X.  Y.)  40 54,  227 

Worthington  v.  Mencer,  96  Ala.  310,  11  South.  72 73,  74 

Wright  v.  Brown,  4  Ind.  95 51,  338 

v.  Caldwell,  3  Mich.  51 280,  281 

v.  City  of  St.  Cloud,  54  Minn.  94,  55  X.  W.  819 53- 

v.  Clark,  50  Vt.  130 367 

v.  Council,  78  Ga.  241 450 

v.  Def rees,  8  Ind.  298 380 

v.  Railroad  Co.,  4  Allen  (Mass.)  283 62 

28  Barb.  80 90 

78  Cal.  360,  20  Pac.  740 194 

18   Ind.    168 341 

25  X.  Y.  562 98 

122  X.  C.  852,  29  S.  E.  100 190 

123  X.  C.  280,  31  S.  E.  652 90,  97 

v.  Southern  Pac.  Co.,  14  Utah,  383,  46  Pac.  374 151 

Y.  Telegraph  Co.,  20  Iowa,  195 53 

v.  Wilcox,  19  Wend.  (X.  Y.)  343 169 

Wuotilla  v.  Lumber  Co.,  37  Minn.  153,  33  X.  W.  551 120 

Wurdemann  v.  Barnes,  92  Wis.  206,  66  X.  W.  Ill 37G 

Wyckoff  v.  Ferry  Co.,  52  X.  Y.  32 21G 

Wyld  v.  Pickford,  8  Mees.  &  W.  443 238- 


CASES  CITED.  GUo- 

•  Page 

Wylie  v.  Birch,  4  Q.  B.  566 381 

Wyllle  v.  Palmer,  137  N.  Y.  248,  33  N.  E.  381 156,  157 

Wyman  v.  Railroad  Co.,  34  Minn.  210,  25  N.  W.  349 183,  185,  200 

Wymore  v.  Mahaska  Co.,  78  Iowa,  396,  43  N.  W.  264 71,  395 

Wynn  v.  Allard,  5  Watts  &  S.  (Pa.)  524 76- 

Wynne  v.  Haight,  27  App.  Div.  7,  50  N.  Y.  Supp.  187 315- 


Y 

Yahn  v.  City  of  Ottumwa,  60  Iowa»  429,  15  N.  W.  257 61 

Yarnell  v.  Railroad  Co.,  75  Mo.  575 78 

113  Mo.  570,  21  S.  W.  1 205,  211 

Yates  v.  Brown,  8  Pick.  (Mass.)  23 159 

v.  Iron  Co.,  69  Md.  370,  16  Atl.  280 148- 

v.  Squires,  19  Iowa,  26 171 

v.  Town  of  Warrenton,  84  Va.  337,  4  S.  E.  818 435- 

Yazoo  &  M.  V.  R.  Co.  v.  Whittington,  74  Miss.  410,  21  South.  249 344 

Yeaton  v.  Railroad  Corp.,  135  Mass.  418 94,  111 

Yeomans  v.  Navigation  Co.,  44  Cal.  71 ..188,  189- 

Yerkes  v.  Sabin,  97  Ind.  141 218 

Yertore  v.  Wiswall,  16  How.  Prac.  (N.  Y.)  8,  28 402,  403 

Yielding  v.  Fay,  Cro.  Eliz.  569 455 

Yoakum  v.  Dryden  (Tex.  Civ.  App.)  26  S.  W.  312 280 

Yorton  v.  Railway  Co.,  54  Wis.  234,  11  N.  W.  482 198 

Youmans  v.  Paine,  86  Hun,  479,  35  N.  Y.  Supp.  50 16£ 

Young  v.  Harvey,  16  Ind.  314 309 

v.  Mason,  8  Ind.  App.  264,  35  N.  E.  521 37S 

v.  Railway  Co.,  80  Ala.  100 297 

46   Fed.    160 151 

25  South.   (La.)  69 185 

50  X.  E.  (Mass.)  455 177 

115  Pa.  St.  112,  7  Atl.  741 182 

z 

Zachery  v.  Railroad  Co.,  74  Miss.  520,  21  South.  246 192 

75  Miss.  746,  23  South.  434 192 

Zeigler  v.  Railroad  Co.,  52  Conn.  543 129,  189,  211 

Ziegler  v.  Com.,  12  Pa.  St.  227 388 

Zimmer  v.  Railroad  Co.,  7  Hun  (N.  Y.)  552 328- 

Zimmerman  v.  Railroad  Co.,  71  Mo.  476 : 51 

Zinn  v.  Steamboat  Co.,  49  N.  Y.  442 285 

Zintek  v.  Mill  Co.,  6  Wash.  178,  32  Pac.  997 150 

9  Wash.  395,  37  Pac.  340 133 

Zoebisch  v.  Tarbell,  10  Allen  (Mass.)  385 305,  310 


INDEX. 

[THE  FIGURES  REFER  TO  PAGES.] 


A 

ACCEPTANCE, 

carrier's  liability  as  dependent  on  acceptance,  280,  281. 
ACT  OF  GOD, 

as  proximate  cause,  21-25. 

as  defense,  22. 

effect  on  liability  of  passenger  carrier  for  deviation  or  delay,  210,  225, 

tests,  225,  226. 

release  from  liability  where  loss  occasioned  by  act  of  God,  225-229. 

as  excusing  nondelivery  of  goods,  299. 

AGENCY, 

negligence  of  agent  imputed  to  principal,  55. 

relation  as  basis  for  master's  liability  to  third  persons,  155-160. 

liability  of  carrier  for  wrongful  acts  of  agents  and  employe's,  207. 

connecting  carrier  as  agent  of  initial  carrier,  292. 

authority  of  carrier's  agent  to  make  through  transportation  contract,  295, 

assurance  of  safety  of  crossing  by  railroad  agent  as  justifying  omission- 

to  look  and  listen,  333,  334. 
liability  of  municipality  for  acts  of  officers  or  agents,  440  did. 

AMENDMENT, 

see  "Pleading." 
of  pleadings  in  action  for  death,  417. 

ANIMALS, 

care  required  of  hirer  of  horse,  31. 

duty  of  carrier  to  supply  water  to  animals,  222,  223. 

carriers  of  live  stock  as  common  carriers,  261-265. 

inherent  pernicious  character  as  affecting  care  at  hands  of  carrier,  265r 

266. 

injuries  to  trespassing  animals  by  hidden  dangers,  310. 
cattle  upon  railroad  track  as  trespassers,  340,  341. 
liability  of  railroad  for  wanton  and  willful  injury  to  animals,  342,  343. 
contributory  negligence  of  owner  of  cattle  injured  by  railroad,  346-348, 

not  trespassing  when  crossing  railroad  on  highway,  348. 
BAR.NEG.  (605) 


606  INDEX 

[The  figures  refer  to  pages.] 
ANIMALS— Continued, 

liability  of  owner  for  damages  by  animals  ferae  naturae,  360-362. 

of  one  in  control  of  animals,  362. 
domestic  animals  defined,  363. 

necessity  that  owner  of  domestic  animal  have  notice  of  dangerous  pro- 
pensity, 363. 

sufficiency  of  evidence  to  establish  vicious  propensity,  363,  364. 
caveat  emptor  applies  to  sale  of  infected  animals,  366. 
liability  of  owner  for  communicating  diseases,  366. 
right  of  owner  to  keep  diseased  animals  on  his  own  premises,  366. 

APPLIANCES, 

duty  of  master  as  to  furnishing,  90-97. 

APPORTIONMENT, 

of  damages  in  concurring  negligence,  26. 

ARRESTS, 

liability  of  master  for  malicious  arrests,  171,  173. 

ASSAULTS, 

liability  of  master  for  assaults  of  servant,  170-172. 
carrier  may  refuse  to  carry  one  intending  to  commit,  192. 

ASSENT, 

notice  limiting  carrier's  liability  must  receive  shipper's  assent,  254-259. 

what  constitutes  assent,  255,  256. 

shipper  having  actual  notice  bound  by  reasonable  rules  of  carrier  without 
express  assent,  259-261. 

ASSUMPTION  OF  RISK, 

by  one  with  knowledge  of  danger,  43. 
in  saving  one's  life  or  property,  43. 

ATTACHMENT, 

of  goods  in  carrier's  possession,  validity  of  writ,  233. 

ATTORNEYS, 

knowledge  of  law  required,  371-375. 

diligence  required  in  examination  of  titles,  374. 

negligence  in  preparing  and  recording  instruments,  374. 

liability  for  negligence  where  services  were  gratuitous,  374. 

more  favorable  result  except  for  negligence  must  be  proved,  375. 

B 

BAGGAGE, 

acceptance  of  baggage  check  as  assent  to  conditions  limiting  liability,  258, 

259. 
obligation  of  carrier  to  carry,  267. 


INDEX.  607 

[The  figures  refer  to  pages.] 
BAGGAGE— Continued, 

what  constitutes,  268-271. 

custom  and  usage  as  determining  character,  271,  272. 
necessity  of  passenger's  ownership.  273,  274. 
necessity  that  passenger  accompany  baggage,  274. 
liability  for  loss  as  affected  by  custody,  275-278. 
sleeping-car  company  not  liable  for  loss,  278. 
passenger  allowed  reasonable  time  for  removal,  289. 

BAILEE, 

care  where  bailment  for  benefit  of  bailor,  31. 

care  where  bailment  for  mutual  advantage,  31. 

railroad  company  bailee  for  hire  where  consignee  not  prompt  in  removing 

freight,  287. 
sheriff  as  bailee  for  forthcoming  of  goods  levied  on,  384,  385. 

BARGEMEN, 

as  common  carriers,  215. 

BILL  OF  LADING, 

acceptance  by  shipper  as  assent  to  conditions,  256,  257. 
necessity  of  reading  by  shipper,  257. 
as  severable  contract,  261. 

BILLS  AND  NOTES, 

protest  by  notaries  public,  386. 

BLINDNESS, 

as  affecting  contributory  negligence,  74-76. 

BOILERS. 

master's  liability  for  injuries  caused  by  explosion,  154. 

BOOK  AGENTS, 

right  of  carrier  to  refuse  admission  to  train,  192. 

BRIDGES, 

contributory  negligence  of  one  using  bridge  with  knowledge  of  unsafe 

condition,  43. 

risk  of  brakeman  as  to  low  bridges,  110. 
liability  of  municipality  for  injuries,  431,  432. 
of  quasi  municipal  corporation,  454-457. 

BURDEN  OF  PROOF, 

see  "Evidence." 

of  contributory  negligence,  81-84. 

where  action  based  on  failure  of  master  to  prescribe  rules,  103. 
as  to  losses  on  through  transportation  contract,  295,  296. 
as  to  cause  of  fire  in  action  against  railroad,  356. 
In  actions  for  malpractice,  378,  379. 


608  INDEX. 

[The  figures  refer  to  pages.] 

c 

CANAL  COMPANIES, 

as  common  carriers,  215. 

GARB, 

degree  with  reference  to  extraordinary  natural  occurrences,  24. 
degrees,  27-33. 

slight  care,  31. 

ordinary  care,  31. 

great  care,  32. 
construction  of  dams,  32. 
test  of  requisite  care,  33. 
degree  of  care  required  of  plaintiff,  38. 
test  of  ordinary  care,  38. 
degree  required  where  terror  caused  by  defendant's  negligence,  40. 

as  to  trespasser  or  licensee,  48-50. 

of  passenger,  58. 

of  child  by  parent,  63. 

of  child,  64,  65. 

of  lunatics  and  idiots,  73. 

physical  condition  as  determining  degree,  74-76. 
required  of  master  as  to  appliances  and  places  for  work,  90-97. 

as  to  inspection  and  repairs,  95. 
duty  of  servant  to  observe  care  to  avoid  injury,  114. 
duty  of  master  as  to  instructions  to  minor,  119. 
requisite  in  ejecting  passenger,  185. 
highest  degree  of  care  for  safety  of  passenger,  201. 
duty  of  carrier  as  to  protection  of  goods  injured  by  excepted  cause,  221, 

as  to  baggage  on  arrival  at  destination,  289. 
degree  required  as  to  excavations  by  adjoining  landowners,  301,  302. 

of  occupant  towards  those  coming  upon  premises,  303. 

of  owner  of  premises  as  to  visitors,  licensees,  and  trespassers,  304-307. 

of  occupant  of  private  and  secluded  grounds  as  to  trespassers,  310. 
degree  of  care  exacted  in  operating  railroad,  205,  321,  322. 

as  to  furnishing  stational  facilities,  207-209. 
ordinary  care  of  railroad  to  prevent  injuries  to  persons,  323,  324. 

degree  proportioned  to  danger,  325-328. 
duty  of  travelers  at  railroad  crossing  to  look  and  listen,  329-336. 

traveler  at  obscured  crossing  need  not  alight  and  investigate,  334,  335. 
required  of  railroad  as  to  animals  on  or  near  tracks,  342-344. 
by  railroad  as  to  equipment,  354,  355. 
required  of  bearer  of  loaded  firearms,  367,  368. 

in  transportation  of  explosives,  369. 


INDEX.  609 

[The  figures  refer  to  pages.1 
CARE— Continued, 

required  of  attorneys,  371-375. 

of  physicians  and  surgeons,  375-378. 
of  officer  in  making  sale,  384. 

CARRIERS  OF  GOODS, 

see  "Carriers  of  Passengers";  "Railroads." 
identification  of  shipper  with  carrier,  56. 
doctrine  of  Thorogood  v.  Bryan,  56,  57. 
definition  and  essential  characteristics,  214-217. 
as  insurer,  217,  218. 

not  insurer  against  loss  caused  by  act  of  shipper,  230-233. 
liability  as  dependent  on  custody,  218. 
burden  of  proof  in  action  for  loss  or  injury,  219,  220. 
duty  as  to  care  of  goods  under  excepted  risk,  221. 
liability  as  bailee  for  hire  as  to  excepted  risk,  222. 
duty  as  to  equipment,  223. 
exemption  from  liability  where  loss  occasioned  by  act  of  God  or  public 

enemy,  225-230. 

duty  of  carrier  to  avoid  loss  by  public  enemy,  230. 
duty  of  shipper  to  acquaint  carrier  with  nature  of  shipment,  230. 
not  liable  for  loss  occurring  through  exercise  of  public  authority,  232. 
duty  to  ascertain  validity  of  writ  for  goods,  232. 

not  an  insurer  against  loss  arising  from  inherent  nature  of  shipment,  233. 
liability  for  delay  as  dependent  on  contract,  234,  235. 

preservation  of  goods  during  delay,  236. 
contracts  limiting  liability  of  carrier  of  goods,  237-261. 

right  to  contract  limiting  amount  of  liability,  247-250. 

right  to  limit  time  for  making  claim  for  damages,  250,  251. 

contracts  to  be  strictly  construed,  253,  254. 
assent  of  shipper  to  reasonable  rules  of  carrier,  259-261. 
carriers  of  live  stock  as  common  carriers,  261-265. 
care  of  live  stock  as  affected  by  nature  of  animals,  265,  266. 
obligation  of  passenger  carrier  to  carry  baggage,  267. 
liability  for  loss  of  baggage  as  affected  by  custody,  275-278. 

as  dependent  on  complete  delivery,  279,  280. 

as  dependent  on  acceptance  by  carrier,  280. 
termination  of  liability  by  delivery  to  consignee,  282-290. 
carrier  by  water  not  required  to  make  personal  delivery,  284-286'. 
reasonable  time  for  removal  of  goods  shipped  by  water,  285. 
rules  governing  delivery  same  with  carriers  by  sea  as  on  inland  waters, 

286. 

termination  of  liability  as  dependent  on  placing  car  in  position  for  un- 
loading, 288. 

by  arrival  at  station  and  transfer  to  warehouse,  288. 
BAR.NEG.--39 


610  INDEX. 

[The  figures  refer  to  pages.] 
CARRIERS  OF  GOODS-Continued, 

passenger  allowed  reasonable  time  for  removal  of  baggage,  289. 

termination  of  liability  by  delivery  to  connecting  carrier,  290-296. 

sufficiency  of  delivery  to  connecting  carrier  to  terminate  initial  carrier's 
liability,  290,  291. 

liability  for  transportation  over  line  of  connecting  carrier,  291-296. 

contract  for  through  transportation  raised  by  implication,  292. 

excuses  for  nondelivery,  296-299. 

degree  of  care  in  transportation  of  explosives,  369. 

CARRIERS  OF  PASSENGERS, 

see  "Carriers  of  Goods";   "Railroads." 
contributory  negligence  of  carrier,  58. 
duty  to  protect  passengers,  170. 
definition,  175,  176. 
construction  train  as  carrier,  176. 
significance  of  term  "common  carrier,"  176. 
commencement  of  relation,  176-178. 

attempt  to  board  train  by  direction  of  carrier's  servants  as  creating 
relation,  178. 

purchase  of  ticket  as  constituting  one  a  passenger,  178. 
termination  of  passenger  relation,  178-186. 

arrival  of  passenger  at  destination,  178-180. 

transfer  to  connecting  carrier,  181,  182. 

ejection  of  passenger,  183,  184. 

continuance  of  relation  while  in  station  at  destination,  179. 
duty  of  carrier  to  announce  station,  180. 
not  required  to  assist  passenger  to  alight,  180. 

passenger  injured  while  alighting  at  place  remote  from  platform  on  an- 
nouncement of  station,  180. 

limitation  of  liability  on  through  ticket,  181,  182. 
carrier  on  whose  line  injury  occurred  liable,  regardless  of  contract  with 

first  carrier,  182. 
through  tickets,  182. 
right  of  carrier  to  eject  passenger,  183-186. 

ejection  for  failure  to  pay  fare,  183. 

ejection  for  drunkenness,  profanity,  and  indecent  language,  183. 

effect  of  tender  of  fare  to  prevent  ejection,  184. 

ejection  of  passenger  for  vending  merchandise  on  train,  184. 

must  be  made  at  a  suitable  place,  185. 

resistance  not  essential  to  maintenance  of  action  for  wrongful  ejection,  186. 
passengers,  definition,  186. 

right  to  designate  trains  for  carriage  of  passengers,  186-189. 
freight  trains  as  passenger  carriers,  187,  188. 
furnishing  vehicles  or  motive  power  as  fixing  liability  to  passenger,  189. 


INDEX.  611 

[The  figures  refer  to  pages.] 

CARRIERS  OF  PASSENGERS-Continued, 
employes  as  passengers,  189,  190. 
liability  for  injuries  to  gratuitous  passengers,  190,  191. 
duty  to  accept  passengers,  191,  192. 

prepayment  of  fare  as  condition  precedent  to  passenger  relation,  193. 
right  to  refuse  to  sell  tickets  where  accommodations  exhausted,  193. 
right  to  classify  passengers,  194. 

compensation  in  advance  as  condition  of  contract,  200. 
stopover  privileges,  200. 
uniformity  of  rates,  200. 
duty  to  furnish  change,  201. 
equipment  of  trains,  202,  203. 
latent  defects  in  equipment,  203. 
liability  for  unavoidable  dangers,  204. 
risks  assumed  by  passenger,  205. 

liability  for  negligence  of  connecting  carrier,  206,  207. 
liability  for  wrongful  acts  of  agents,  fellow  passengers,  and  others,  207. 
liability  of  lessees  and  trustees  for  injuries  to  passengers,  209. 
duty  as  to  stational  facilities,  207-209. 
liability  for  delay,  210. 

injuries  to  persons  not  passengers,   210,   211. 
duty  to  persons  accompanying  passengers  to  trains,  211. 
right  to  limit  liability  for  negligence  denied,  212,  213. 

€ATTLE, 

see  "Animals." 

CAVEAT  EMPTOR, 

rule  applies  to  purchase  of  infected  animals,  366. 

CHILDREN, 

see  "Parent  and  Child." 
when  sui  juris,  66. 
machines  and  attractive  places,  69. 
care  required  of  tenant  towards  children,  305,  306. 
playing  with  strange  dog  not  contributory  negligence,  365. 
posthumous  child  as  party  to  action  for  death  by  wrongful  act,  404. 

CIVIL  RIGHTS, 

Carrier  may  provide  separate  compartments  for  colored  passengers,  195. 

CLAIMS, 

right  of  carrier  to  regulate  manner  of  making  claim  for  damages,  230,  251. 

CLASSIFICATION, 

Right  of  carrier  to  classify  passengers,  194. 

CLERKS  OF  COURT, 

ministerial  officers,  and  liable  for  negligent  performance  of  duty,  387-389. 


612  INDEX. 

[The  figures  refer  to  pages.] 
COLLISION, 

see  "Railroads." 

as  excuse  for  delay  in  delivery  of  goods,  236. 
care  required  of  railroad  to  prevent  collision  with  traveler,  322-329. 

COMPARATIVE  NEGLIGENCE, 
doctrine,  79-81. 

COMPENSATION, 

as  essential  to  contract  of  carriage,  and  may  be  demanded  in  advance,  200, 
for  carriage  of  passenger  must  be  uniform,  200. 

CONCURRING  NEGLIGENCE, 
joint  and  several  liability,  21. 
application  to  municipal  torts,  25. 

apportionment  of  damages  where  acts  are  separable,  26. 
relative  importance  of  different  acts  disregarded,  26. 
of  master  with  fellow  servant,  146-151. 

CONNECTING  CARRIERS, 

see  "Carriers  of  Goods";  "Carriers  of  Passengers." 
termination  of  passenger  relation  by  transfer  to  connecting  carrier,  181,. 

182. 

liability  under  through  tickets,  182. 
liability  for  negligence  of  connecting  carrier,  206,  207. 
defined,  290. 
sufficiency  of  delivery  to  connecting  carrier  to  terminate  liability  of  initial1 

carrier,  291. 

contract  for  through  transportation  may  be  raised  by  implication,  292. 
English  rule  making  initial  carrier  liable  for  through  carriage,  294,  295- 
authority  of  agents  to  make  through  contract,  295. 
presumptions  and  burden  of  proof,  295,  296. 

CONTAGIOUS  DISEASES, 

carrier  may  refuse  to  carry  one  affected,  192. 

CONTRACTS, 

liability  of  carrier  for  breach  for  failure  to  furnish  accommodation  to  pas- 
senger, 193. 

ticket  as  evidence  of  contract  with  passenger,  197-200. 

carrier's  liability  for  delay  as  dependent  on  special  contract,  234-237. 

limiting  liability  of  carrier  of  goods,  237-261. 

consideration  to  support  carrier's  contract  limiting  liability,  252,  253. 

limiting  liability  to  be  strictly  construed,  253. 

lex  loci  contractus  determines  validity  of  contract  limiting  liability,  253,. 
254. 

bill  of  lading  as  severable  contract,  261. 


INDEX.  613 

[The  figures  refer  to  page*.] 
CONTRIBUTORY  NEGLIGENCE, 
definition,  34. 
general  rule,  35. 

not  available  in  action  for  willful  tort,  35. 
must  proximately  contribute  to  injury,  36. 

defendant's  failure  to  avoid  consequences  of  injured  party's  negligence,  37. 
degree  of  care  required  of  plaintiff,  38. 
plaintiff's  knowledge  of  danger  as  prerequisite,  41. 
assumption  of  risk  where  knowledge  of  danger,  43. 
obligation  to  anticipate  danger  or  negligence,  44. 

legal  status  of  plaintiff  as  affecting  his  contributory  negligence,  45-50. 
illegality  of  plaintiffs  conduct  as  contributory  negligence   per  se,  46. 
available  as  defense  where  defendant  fails  to  observe  statute,  48. 
breach  of  legal  duty  by  defendant  as  relieving  plaintiff  from  contributory 

negligence,  48. 
relative  time  of  plaintiff's  negligence  as  affecting  his  right  to  recover,  51- 

54. 

plaintiff's  negligence  after  accident,  53. 
of  third  persons,  54-74. 

rule  where  misconduct  of  third  party  a  defense,  55. 
of  carrier  of  goods  to  defeat  recovery  against  third  person,  66. 
application  to  carrier  of  passengers,  58-60. 
of  husband  not  chargeable  to  wife,  60. 
imputed  negligence,  61-74. 
of  children,  64-72. 
lunatics  and  idiots,  73. 
physical  condition  as  an  element,  74. 
Intoxication  as  evidence,  76-79. 
doctrine  of  comparative  negligence,  79-81. 
burden  of  proof,  81-84. 
pleading,  85. 

evidence  admissible  under  general  denial,  86. 
as  question  of  fact,  86-88. 

any  evidence  entitles  defendant  to  instruction,  88. 
effect  of  master's  negligence  concurring  with  that  of  fellow  servant,  146- 

151. 

of  traveler  at  railroad  crossing,  337-340. 
failure  of  railroad  to  observe  statutory  duty  does  not  change  rule  as  to 

contributory  negligence,  338. 

<Iuty  of  railroad  on  timely  discovery  of  one  on  crossing,  338,  339. 
of  owners  of  cattle  injured  by  railroad,  346-348. 
railroad  fires,  358-360. 
injuries  caused  by  domestic  animals,  365. 
as  defense  in  actions  on  municipal  torts,  434. 


614  INDEX. 

[The  figures  refer  to  pages.] 
CONTROL, 

one  in  control  of  dangerous  animal  liable  for  injuries,  362. 

CONVERSION, 

liability  for  conversion  committed  at  direction  of  master,  157. 

CO-OPERATING  CAUSE, 

effect  on  proximate  cause,  19,  20. 

CORPORATIONS, 

.     distinction  between  public  and  private  corporations,  423,  425. 
CREDITORS, 

of  deceased  excluded  from  distribution  of  recovery  for  death,  404. 

CRIMINAL  LAW, 

negligence  as  including  both  heedlessness  and  rashness,  7. 

CRIMINALS, 

carrier  may  refuse  to  carry  criminals  as  passengers,  192. 

CUSTOM  AND  USAGE, 

as  determining  whether  given  article  is  baggage,  271,  272. 

D 

DAMAGES, 

as  logical  consequence  of  negligence,  8. 

"damnum  absque  injuria,"  9. 

"injuria"  and  "damnum"  distinguished,  9. 

apportionment  in  concurring  negligence,  26. 

plaintiff's  negligence  after  accident,  effect  on  amount,  53. 

measure  in  action  against  attorney  for  negligence,  375. 

for  death  measured  by  pecuniary  loss  to  beneficiaries,  404-415. 

funeral  expenses  as  element  in  actions  for  death,  406. 

mental  or  physical  sufferings  not  an  element  in  action  for  death,  406. 

recoverable  for  death  of  wife  or  child,  408-410. 

loss  of  prospective  gifts  and  inheritances  as  damages  for  death,  410-412. 

excessive,  province  of  court,  414. 

municipality  not  liable  for  vindictive  damages,  445. 

DAMNUM, 

distinguished  from  "injuria,"  9. 

DAMS, 

construction  with  reference  to  extraordinary  floods,  25. 

care  required  in  construction,  32. 

breaking  as  act  of  God,  227. 

right  of  riparian  owner  to  construct  and  maintain  dam,  318,  319. 

DANGER, 

knowledge  of  danger  by  plaintiff  as  prerequisite  to  defense  of  contrib- 
utory negligence,  41. 


INDEX.  615 

[The  figures  refer  to  pages.] 
DANGER— Continued, 

assumption  of  risk  by  one  having  knowledge  of  danger,  43. 

known  dangers  assumed  by  servant,  111. 

unusual  dangers  not  assumed  by  servant,  113. 

assumption  by  servant  of  unknown  defects  or  dangers,  117. 

effect  on  risk  by  servant  of  newly-discovered  dangers,  117. 

effect  of  promise  to  repair  on  risk  assumed  by  servant,  120. 

compliance  with  express  orders  as  lessening  risk  assumed  by  servant, 

122. 
liability  of  carrier  for  unavoidable  dangers,  204. 

of  occupant  of  premises  for  hidden  dangers,  308-310. 
care  by  railroad  to  prevent  injuries  at  crossings  proportioned  to  danger, 
325-328. 

DANGEROUS  PREMISES, 

general  duty  of  owner,  302,  303. 

removal  of  buildings  partially  destroyed  by  fire,  302. 

construction  of  buildings  to  prevent  accumulation  of  ice  and  snow, 

303. 
as  to  overhanging  objects,  303. 

DEAFNESS, 

as  affecting  contributory  negligence,  74-76. 

duty  of  increased  vigilance  at  railroad  crossing,  336. 

DEATH   BY   WRONGFUL   ACT, 

no  right  of  action  for  under  common  law,  390-392. 
Lord  Campbell's  act,  390-397. 

adoption  by  American  states,  392. 
"wrongful  act"  denned,  393. 

defense  of  contributory  negligence  open,  393,  394. 
doctrine  of  imputed  negligence  applicable,  394-397. 
time  of  death  does  not  affect  right  of  action,  397,  398. 
to  maintain  action  death  must  be  proximate  result  of  negligence,  398-400. 
parties  to  actions,  400-^02. 

necessity  of  allegation  and  proof  of  survival  of  beneficiary,  402-^04. 
action  may  be  maintained  for  posthumous  child,  404. 
damages  recoverable,  404— 415. 

loss  of  support  recoverable  by  wife  or  child,  407,  408. 

loss  of  prospective  gifts  and  inheritances  as  element  of  damages,  410- 
412. 

insurance  received  may  not  be  considered  in  reduction  of  damages, 
413,  414. 

amount  within  discretion  of  jury.  -41-1. 

duty  of  court  where  finding  of  jury  excessive,  414. 

instructions,  414. 
pleading  negligence  and  resulting  injury,  415. 


616  INDEX. 

[The  figures  refer  to  pages.] 
DEATH  BY  WRONGFUL  ACT— Continued, 

complaint  must  allege  appointment  where  action  brought  by  personal 

representative,  416. 

existence  of  beneficiaries  must  be  pleaded,  names  not  necessary,  416. 
allegations  of  damages  in  complaint,  416,  417. 
amendments  of  pleading,  417. 
character  of  evidence,  418,  419. 

limitation  of  action  for  death  by  wrongful  act,  419-422. 
notice  as  prerequisite  to  action,  421,  422. 
DEFECTS, 

latent  defects,  duty  of  carrier  of  passengers  to  inspect,  203. 

DEGREES  OF  CARE, 
see  "Care." 

DEGREES  OF  NEGLIGENCE, 
no  degree  of  negligence,  33. 
DELAY. 

liability  of  passenger  carrier  for  delay,  210. 

where  loss  occasioned  by  act  of  God,  224,  225. 
In  absence  of  special  contract,  carrier  obligated   to  ordinary  diligence, 

234,  235. 
where  special  contract  for  delivery  at  specified  time,  obligation  absolute, 

234,  235. 
excuses  for  delay  in  delivery  of  goods  by  carrier,  235,  236. 

DELEGATION, 

master  may  not  avoid  liability  by  delegation,  142. 

DELIVERY, 

complete  delivery  as  essential  to  commencement  of  carrier's  liability,  279, 

280. 

place  of  delivery  of  goods  to  carrier,  280. 

personal  delivery  to  consignee  as  terminating  carrier's  liability,  282-284. 
essentials  of  personal  delivery  of  freight,  283. 
delivery  of  C.  O.  D.  consignment,  284. 

personal  delivery  not  required  of  carrier  by  water,  284-286. 
of  freight  by  railroad  companies,  286-288. 
excuses  for  nondelivery  of  freight,  296-299. 

superior  adverse  claim,  297. 

stoppage  in  transitu,  297,  298. 

excepted  perils,  299. 

DEVIATION, 

liability  for  deviation  where  injury  caused  by  act  of  God,  224,  225. 

DILIGENCE, 

due  diligence  as  to  notice  to  consignee  of  arrival  of  consignment,  285. 
required  of  railroad  as  to  repairs  of  fences,  345. 


INDEX.  617 

[The  figures  refer  to  pages.] 
DISCRIMINATION, 

as  to  railroad  fares  prohibited,  200. 

DISORDERLY  PERSONS, 

right  of  carrier  to  refuse  to  carry,  192. 

DISTRIBUTION, 

of  recovery  for  death  by  wrongful  act,  404. 

creditors  of  deceased  excluded,  404. 
DOGS, 

see  "Animals." 

liability  for  injury  in  separating  fighting  dogs,  12. 
vicious  dogs,  injuries  by,  ,361.,.  362. 

DRUGGISTS, 

High  degree  of  care  in  dealing  in  or  handling  poisons,  369. 

DURESS, 

liability  of  one  under  duress,  21. 

DUTY, 

see  "Care." 

legal  duty  as  element  of  negligence,  3,  4. 
breach  of  moral  duty  as  actionable  negligence,  4. 
of  carrier  of  goods  as  to  preservation  of  goods  during  delay,  236. 
of  persons  at  railroad  crossing  to  stop  and  listen,  329. 

E 

EARTHQUAKE, 

as  act  of  God,  226. 

EQUIPMENT, 

see  "Carriers  of  Goods";   "Carriers  of  Passengers";   "Fires";   "Railroads." 

EVIDENCE, 

of  intent  admissible  only  on  plea  of  malice,  8. 

intoxication  proved  by  nonexperts,  79. 

burden  of  proof  of  contributory  negligence,  81-84. 

proof  of  contributory  negligence  under  general  denial,  86. 

as  to  incompetency  of  fellow  servant,  99. 

incompetency  of  fellow  servant  not  proof  of  negligence,  100. 

admissibility  of  private  rules  of  master  in  action  by  stranger,  104. 

burden  as  to  excepted  causes  in  case  of  loss  or  injury  to  freight,  219,  220. 

sufficiency  to  establish  liability  on  carrier's  contract  for  through  trans- 
portation, 292-294. 

presumptions  and  burden  of  proof  as  to  losses  on  through  transportation 
contract,  295,  296. 

burden  as  to  cause  of  fire  in  actions  for  injuries  caused  by  railroad  fires, 
356. 


618  INDEX. 

[The  figures  refer  to  pages.] 
EVIDENCE— Continued, 

presumptions  where  fire  set  out  by  locomotive,  357,  358. 

sufficiency  to  establish  knowledge  of  animal's  propensity  by  owner,  363. 

negligence  of  attorney  may  not  be  proved  by  opinion  of  another  attorney, 
375. 

burden  in  actions  for  malpractice,  378,  379. 

burden  as  to  exercise  of  discretion  by  sheriff  in  making  levy,  384. 

expectancy  tables  as  evidence  in  actions  for  death,  413,  414. 

character  of  evidence  in  action  for  death,  418. 

defendant  as  witness  in  action  for  death,  418,  419. 

weather  records  as  evidence  on  question  of  rain  or  snow,  434,  435. 

EXCAVATION, 

degree  of  care  in  making,  31. 

right  of  adjoining  landowners  to  sink  foundations,  301,  302. 

tenant's  liability  for  injuries  caused  by  excavations,  308-310. 

EXEMPT  PROPERTY, 

sheriff  liable  for  sale  of,  383. 

EXPECTANCY  TABLES, 

as  evidence  in  action  for  death,  413,  414. 

EXPLOSIVES, 

negligence  in  keeping  may  be  predicated  upon  quantity  stored,  368. 
degree  of  care  in  keeping  and  using  proportionate  to  danger,  368,  369, 

EXPRESS  COMPANIES, 
as  common  carriers,  215. 
express  messengers  as  passengers,  188. 

EXPRESS  RECEIPTS, 

subject  to  same  rules  as  bills  of  lading  on  acceptance  by  shipper,  257- 

F 

FARES, 

see  "Carriers  of  Passengers." 

FELLOW  SERVANTS, 

duty  of  master  as  to  selection  and  retention,  97-101. 

evidence  of  incompetency,  99. 

risk  from  negligence  of  fellow  servant,  124-152. 

reason  for  doctrine,  125--128. 

definition  impracticable,  127. 

community  of  service,  128. 

common  employment  as  test,  129. 

New  York  doctrine,  133. 

rule  in  Ohio,  134. 

repairers  of  machinery  as  fellow  servants,  137,  138. 

foreman  and  laborers,  141. 


INDEX.  619 

[The  figures  refer  to  pages.] 
FELLOW  SERVANTS— Continued, 
rule  in  federal  courts,  142-145. 
duty  of  hiring  competent  servants,  147. 
applicability  of  doctrine  to  municipalities,  448. 

FENCES, 

see  "Railroads." 

common-law  fence  regulations  as  to  animals,  341. 
liability  of  railroad  for  injuries  to  stock  as  affected  by  failure  to  fence, 

345-348. 
sufficiency  of  fence,  346. 

FERRIES, 

as  common  carriers,  215. 

FIREARMS, 

as  baggage,  269. 

care  required  of  bearer  of  loaded  firearms,  31,  367,  368. 

FIRE  DEPARTMENT, 

city  not  liable  for  negligence  of  members,  443. 

FIRES, 

proximate  cause  as  applied  to  prairie  fires,  14. 

joint  liability  where  injury  caused  by  independent  fires,  20. 

proximate  cause  where  union  of  independent  fires,  20. 

negligence  gist  of  liability  for  fires,  349,  353. 

one  setting  out  fire  for  legitimate  purpose  required  to  use  ordinary  carer 
349,  350. 

proximate  damage,  351-353. 

where  fire  accidentally  set  out,  liability  tested  by  defendant's  degree  of 
care,  351. 

duty  of  railroad  to  equip  locomotives  with  spark  arresters,  354,  355. 
to  remove  combustibles  from  right  of  way,  355,  356. 

presumption  of  negligence  where  fire  set  out  by  locomotive,  357,  358. 

not  contributory  negligence  for  owner  of  land  adjacent  to  railroad  to  use- 
same  for  any  legitimate  purpose,  359. 

right  of  city  to  destroy  buildings  to  prevent  spread  of  fire,  447,  448. 

FLOODS, 

construction  of  dams  with  reference  to  floods,  25. 
as  act  of  God,  226. 

FRAUD, 

master  liable  for  fraud  committed  by  servant  at  his  direction,  157. 

FRUITS, 

duty  of  carrier  to  protect  from  frost  223. 
carrier  not  liable  for  decay  of  fruits,  234. 


•620  INDEX. 

[The  figures  refer  to  pages.] 

G 

<3AMBLERS, 

carrier  may  refuse  transportation,  192. 

-GAS  WORKS, 

liability  for  injuries  where  gas  works  controlled  by  city,  431. 

GIFTS, 

loss  of  prospective  gifts  and  inheritances  as  damages  in  action  for  death, 
410-412. 

•GRADES, 

liability  of  city  for  alteration,  438,  439. 

H 

HACKMEN, 

care  as  to  hackmen  bringing  passengers  to  station,  211. 
as  common  carrier,  215. 

HEALTH, 

duty  of  municipalities  as  to  sanitation,  453. 

HEEDLESSNESS, 

distinguished  from  "malice,"  as  element  of  negligence,  5-8. 

HIGHWAYS, 

railroad  crossing  need  not  be  a  highway,  327. 

liability  of  quasi  municipal  corporation  for  maintenance,  454-457. 

HUSBAND  AND  WIFE, 

contributory  negligence  of  husband  not  chargeable  to  wife,  60. 
husband  not  next  of  kin,  404. 
recovery  for  death  of  husband,  407,  408. 
death  of  wife,  408,  409. 

I 
ILLEGAL  CONDUCT, 

as  negligence  per  se,  46. 

ILLINOIS, 

fellow-servant  doctrine,  134. 

carrier  of  goods  may  contract  against  ordinary,  but  not  gross,  negligence, 
237,  244. 

IMPUTED  NEGLIGENCE, 
definition,  61. 

contributory   negligence  of  parent,   62-73. 
negligence  of  parent  not  imputed  to  child,  70. 
limitation  of  New  York  rule,  72. 
application  to  death  by  wrongful  act,  394-397. 


INDEX  621 

[The  figures  refer  to  pages.] 
INADVERTENCE, 

as  element  of  negligence,  5. 

INDECENT  LANGUAGE, 

right  of  carrier  to  eject  passenger  for  using,  183. 

INDEPENDENT  CONTRACTOR, 
definition,  160. 
master's  liability  dependent  on  care  in  selection,  162. 

where  subject-matter  unlawful,  163. 

where  duty  imposed  by  general  law,  164,  165. 

"INEVITABLE  ACCIDENT," 

as  proximate  cause,  21-25. 

as  defense.  22. 
INFANTS, 

liability  for  negligence,  21. 

duty  of  master  as  to  warning  minor  servant  of  dangers,  106,  107. 

injuries  by  carrier  to  child  carried  free,  191. 

INFIRM  PERSONS, 

degree  of  care  of  decrepit  passenger,  205. 

of  infirm  persons  at  railroad  crossing,  336. 

decrepitude  as  affecting  contributory  negligence,  74-76, 
INNKEEPER, 

sleeping-car  company  not  an  innkeeper  as  to  passengers'  effects,  216,  278, 
INSANE  PERSONS, 

liability  for  negligence,  21. 

rule  governing  children  as  to  contributory  negligence  applicable  to,  73. 
INSPECTION, 

master's  duty,  95. 

duty  of  careful  inspection  of  roadbed,  206. 
INSURANCE. 

may  not  be  considered  to  reduce  damages  for  death  by  wrongful  act,  413, 

414. 
INSURER, 

carrier  of  passengers  as  insurer,  203. 

in  absence  of  special  contract,  carrier  of  goods  an  insurer,  217. 

reason  for  rule  holding  carrier  as  insurer,  220. 

not  insurer  against  loss  caused  by  act  of  shipper,  230-233. 

INTERVENING  CAUSE, 

as  proximate  cause  of  injury,  17. 

infants,  insane  persons,  and  persons  under  duress,  21. 

INTOXICATION, 

not  conclusive  evidence  of  contributory  negligence,  76-79. 
care  of  drunken  trespassers,  78. 


622  INDEX. 

[The  figures  refer  to  pages.] 
INTOXICATION— Continued, 

proof  by  nonexpert  witnesses,  79. 
right  to  eject  drunken  passenger,  183. 

to  accept  intoxicated  person  as  passenger,  192. 
care  required  of  carrier  as  to  intoxicated  persons,  206. 
civil  damage  acts,  400. 

sale  to  decedent  while  in  advanced  state  of  intoxication,  399,  400. 

J 

JEWELRY, 

as  baggage,  270,  271. 

K 

KNOWLEDGE, 

of  danger  by  servant  as  not  requiring  warning.  106,  107. 
effect  of  employ^  remaining  in  service  after  knowledge  of  defect,  116. 
necessity  that  owner  of  domestic  animal  have  notice  of  harmful  propen- 
sity, 363. 
proof  of  owner's  knowledge  of  condition  of  diseased  animals,  363-365. 

L 

LAMENESS, 

as  affecting  contributory  negligence,  74-76. 

LAMPS. 

liability  for  injuries  from  overhanging  lamps  and  other  objects,  303. 

LANDLORD  AND  TENANT, 

injuries  on  leased  premises  where  landlord  has  contracted  to  repair,  311- 

313. 

occupant  primarily  liable  for  injuries  to  third  persons,  311-315. 
joint  liability  where  premises  defective  at  time  of  renting,  313-315. 
liability  of  landlord  to  tenant  for  injuries,  315-317. 
as  affected  by  contract  to  repair,  315,  316. 
as  affected  by  want  of  safe  access  to  rented  property,  316,  317. 

LATERAL  SUPPORT, 

right  of  adjoining  landowner  to  sink  foundations,  301,  302. 
LESSEE, 

see  "Landlord  and  Tenant." 

lessees  and  trustees  as  passenger  carriers,  209. 
LIBEL, 

municipality  cannot  commit,  444. 

LICENSE, 

acquiescence  by  railroad  to  establish  railroad  crossing,  327. 


INDEX.  623 

[The  figures  refer  to  pages.] 
LICENSEE. 

degree  of  care  towards  licensee,  50,  304-307. 

LIGHTNING. 

as  act  of  God,  226. 

LIMITATION  OF  ACTION, 

for  death  by  wrongful  act,  419-422. 

LIMITATION  OF  LIABILITY, 
on  through  ticket,  181,  182. 

prevailing  doctrine  denial  of  right  to  limit  liability  for  negligence,  212. 
carrier  may  limit  liability  except  for  negligence,  237-243. 

Illinois  permits  stipulation  against  ordinary,  but  not  gross,  negligence, 

237,  244. 

New  York  permits  stipulation  against  servant's,  but  not  master's,  neg- 
ligence, 237,  244-246. 

right  of  carrier  of  goods  to  contract  limiting  amount  of  liability,  247-250. 
right  of  carrier  to  limit,  by  contract,  time  for  making  claim,  250,  251. 
consideration  to  support  contract,  252,  253. 
contracts  limiting  liability  to  be  strictly  construed,  253,  254. 
notices  limiting  liability  must  be  assented  to  by  shipper,  254-259. 
what  constitutes  assent,  255,  256. 

acceptance  of  ticket,  baggage  check,  and  receipts  as  assent  to  condi- 
tions limiting  liability,  258. 

LOCOMOTIVES, 

duty  of  railroad  to  equip  locomotives  with  spark  arresters,  354,  355,  358. 

M 

MACHINERY, 

attractive  to  children,  69. 

duty  of  master  as  to  minor  servants,  119. 

repairers  of  machinery  as  fellow  servants,  134. 

defects  in,   contributory  negligence  of   fellow  servant  not  available  as 

defense,  151. 
liability  where  machinery  operated  by  lessor's  servants,  157. 

MALICE, 

heedlessness  distinguished  from,  5-8. 

where  not  pleaded,  direct  proof  inadmissible,  8. 

MALPRACTICE. 

see  "Attorneys";    "Physicians  and  Surgeons." 
negligence  of  attorneys,  371-375. 

amount  actually  lost  by  attorney's  negligence  measure  of  damages,  375. 
more  favorable  result  to  client  except  for  negligence  must  be  proved,  375. 
negligence  of  physicians,  375-378, 


624  INDEX. 

[The  figures  refer  to  pages.] 
MALPRACTICE— Continued, 

burden  of  proof  same  as  in  other  negligence  actions,  378,  379. 

specific  allegation  of  negligence  need  not  be  set  out,  if  facts  sufficient,  379>, 

MARRIED  WOMEN, 

see  "Husband  and  Wife." 

MA  SSACHUSETTS, 

.  fellow-servant  doctrine,  137. 

MASTER  AND  SERVANT, 

negligence  of  servant  imputed  to  master,  55,  56. 
duty  of  master  as  to  care  of  servant,  89-108. 

as  to  appliances  and  places  for  work,  90-97. 
existence  of  relation,  92,  93. 
duty  to  provide  safe  place  for  work,  93,  94. 

of  inspection  and  keeping  in  repair,  95. 

of  master  as  to  selection  of  servants,  97-101. 

as  to  number  of  servants.  98. 

as  to  rules  and  regulations,  101-104. 

warning  and  instructing  servants,  105. 
knowledge  of  danger  by  servant,  106. 
risks  assumed  by  servant,  108. 

ordinary  risks  within  knowledge,  108. 

known  dangers  assumed,  111. 

unusual  dangers  not  assumed,  113. 

unknown  defects  or  dangers,  117. 

newly-discovered  dangers,  117. 
effect  of  employ^  remaining  after  knowledge  of  defect,  116. 

of  promise  to  repair  on  risk  assumed  by  servant,  120. 

of  compliance  with  express  orders  on  risk  assumed  by  servant,  122. 
negligence  of  fellow  servant,  124-152. 
reason  for  fellow-servant  doctrine,  125-128. 

community  of  service  as  basis  of  relation  of  fellow  servant,  128. 
employ^  temporarily  loaned,  128. 
common  employment  as  test  of  fellow  servant,  129. 
volunteer  as  servant,  129. 
doctrine  of  vice  principal,  131-142. 
duty  of  employing  competent  servants,  148-151. 
servant's  own  negligence  as  proximate  cause  of  injury,  152. 
master  not  liable  where  negligence  concerns  matters  foreign  to  general 
business,  153,  154. 

where  business  is  transacted  by  independent  contractor,  153,  160. 
liability  dependent  on  agency  relation  of  servant,  155-160. 

on  wrong  being  committed  within  scope  of  servant's  business,  155-160. 
relationship  as  basis  for  master's  liability  to  third  persons,  155-160. 
in  determining  relation,  question  of  choice  important,  but  not  decisive,  156. 


INDEX.  62-5 

[The  figures  refer  to  pages.] 
MASTER  AND  SERVANT— Continued, 
effect  of  hiring  out  servant,  150,  157. 
fraud,  nuisance,  trespass,  and  conversion  committed  under  direction  of 

master,  157. 

liability  where  leased  machinery  operated  by  lessor's  servants,  157. 
implied  authority  of  servant  to  commit  tort,  159,  160. 
"independent  contractor"  defined,  160. 

liability  for  negligence  of  contractor  dependent  on  care  in  selection,  162. 
where  subject-matter  unlawful,  163. 
where  duty  imposed  by  general  law,  164,  165. 

liability  for  tort  dependent  on  commission  within  scope  of  servant's  em- 
ployment, 167-171. 

liability  as  affected  by  acts  of  servant  for  master's  benefit,  168. 
torts  outside  hours  of  employment,  171. 
independent  torts   of  servant,   172-174. 

payment  of  fare  by  railroad  employe  as  creating  passenger  relation,  190. 
knowledge  of  servant  of  vicious  propensity  of   animal  as  knowledge  of 

master,  365. 
applicability  of  doctrine  of  respondeat  superior  to  municipal  torts,  446- 

448. 
municipality  may  invoke  doctrine  of  fellow  servant,  448, 

MERCHANDISE, 

as  baggage,  270,  272,  273. 

MICHIGAN, 

fellow-servant  doctrine,  136. 

MINNESOTA, 

fellow-servant  doctrine,  140. 

MOBS, 

as  excuse  for  delay  in  delivery  of  goods,  235. 

liability  of  municipality  for  property  destroyed  by  mobs,  452. 
MONEY, 

as  baggage,  270. 

MUNICIPAL  CORPORATIONS, 
'definition,  424,  425. 
quasi   public   corporations,   425. 
action  against  for  negligence,  425-427. 

distinction  between  corporate  and  governmental  duties,  426,  427. 
liability  where  act  inevitably  results  in  injury,  428. 

where  negligent  performance  of  act  naturally  induces  injury,  429-431. 
for  ministerial  acts  anticipating  pecuniary  profit,  431. 
failure  to  make  improvements  not  basis  of  liability,  433. 
improper  occupation  and  use  of  street,  435—437. 
notice  of  injury  as  prerequisite  to  action,  437,  438. 
BAR.NEG.— 40 


626  INDEX. 

[The  figures  refer  to  pages. 5 

MUNICIPAL  CORPORATIONS— Continued, 
alteration  of  grades,  438,  439. 

injuries  caused  by  defects  in  public  buildings.  439.  440. 
liability  for  conduct  of  officers  or  agents,  440  ill 
acts  ultra  vires,  441,  Hi  118. 
municipality  cannot  commit  libel,  444. 
vindictive  damages  not  recoverable  against  city,  445. 

applicability  of  doctrine  of  respondeat  superior  to  municipal  torts,  446-448. 
destruction  of  buildings  to  prevent  spread  of  fire,  447,  448. 
applicability  of  doctrine  of  fellow  servant,  448. 

liability  for  acts  within  legislative  or  judicial  functions,  448-451. 
no  liability  for  failure  to  exercise  discretionary  power,  449-451. 
liability  for  property  destroyed  by  mobs,  452. 

N 

NAVIGABLE  WATERS, 

see  "Riparian  Rights" ;  "Waters  and  Water  Courses." 
rights  of  riparian  owner  and  navigator  reciprocal,  319,  320. 
impeded  navigation  as  excuse  for  delay  in  delivery  of  goods,  236. 

NEGLIGENCE, 
definition,  1. 
essential  elements,  3-9. 

"willful  negligence,"  use  of  term  unfortunate,  5. 
distinction  between  negligence  and  willful  tort,  d. 
"gross  negligence,"  7. 
use  of  term  in  criminal  law,  7. 
no  degrees,  33. 

right  to  limit  liability  for  negligence  to  passenger  denied,  212,  213. 
right  of  carrier  to  contract  exempting  from  liability  for  negligence,  237-261. 
general  rules  of  negligence  govern  ownership  and  occupation  of  laud,  300, 

301. 
violation  of  statute  requiring  giving  of  signals  by  railroad  at  crossing  as 

negligence,  328,  329. 

gist  of  liability  for  injuries  by  fires,  349. 

presumption  of  negligence  where  fire  set  out  by  locomotive,  357,  358. 
gist  of  liability  for  injuries  by  dangerous  animals,  361,  362. 
liability  of  municipal  corporations,  425—427. 

NEW  YORK, 

doctrine  of  fellow  servant,  133. 

carrier  of  goods  may  contract  against  negligence  of  servant,  237,  244-246. 

NOTARIES  PUBLIC, 

liability  for  negligence,  385. 

nature  of  oflice,  385,  386. 

duties  as  to  protest  of  notes  and  bills,  386. 


INDEX.  627 

[The  figures  refer  to  pages.] 
NOTICES, 

notice  of  carrier  limiting  liability  must  receive  shipper's  assent,  254-259. 

notice  to  consignee  of  arrival  of  freight,  285. 

notice  of  arrival  of  baggage  not  required,  290. 

as  prerequisite  to  action  for  death  by  wrongful  act,  421,  422. 

notice  of  injury  as  prerequisite  to  action  against  city,  437,  438. 

NUISANCE. 

liability  for  nuisance  committed  under  direction  of  master,   157. 
liability  to  third  persons  as  between  landlord  and  tenant,  314,  315. 
failure  to  abate  not  ground  for  action  against  city,  450. 

0 

OFFICERS, 

governmental  officers  responsible  to  public  at  large,  379,  380. 
liability  of  ministerial  officers  for  negligence.  380,  381. 
liability  for  unlawful  acts,  382,  383. 
municipal  liability  for  acts  of  officers  or  agents,  440-444. 

OHIO, 

fellow-servant  doctrine,  134. 

P 

PARENT  AND  CHILD, 

see  "Children." 

degree  of  care  of  child  required  of  parent,  63. 
negligence  of  child,  64. 
doctrine  of  imputed  negligence  applicable  to  death  by  wrongful  act,  394- 

397. 
loss  of  support  and  education  as  damages  in  action  for  death  by  wrongful 

act,  407,  408. 
damages  recoverable  for  death  of  minor  child,  409,  410. 

PASS, 

fraudulent  user  of  pass  a  trespasser,  196. 

PASSENGER, 

see  "Carriers  of  Passengers." 

PEDDLERS, 

right  of  carrier  to  refuse  admission  to  its  trains  to  peddlers,  192. 

PENNSYLVANIA, 

fellow-servant  doctrine,  139. 

doctrine  of  superior  and  subordinate  not  recognized,  140. 
PERILS, 

see  "Danger." 

care  required  of  one  in  terror  from  real  or  fancied  peril,  40. 
excepted  perils  as  excusing  nondelivery  of  goods  by  carrier,  209. 


628  INDEX. 

[The  figures  refer  to  pages.] 
PHYSICIANS  AND  SURGEONS, 

degree  of  skill  required  of  physician,  375-378. 

actionable  negligence  predicated  on  incorrect  diagnosis,  376. 

different  "schools"  of  medicine  not  recognized  as  such  in  courts,  377. 

rules  regulating  practice  of  medicine  as  within  police  power,  378. 

pleading  and  evidence  in  suits  for  malpractice,  379. 

pre-existing  bodily  condition  and  failure  to  follow  directions  as  defense 
In  malpractice,  379. 

PIRATES, 

as  public  enemies,  230. 

PLEADING, 

specific  plea  of  malice  essential  to  admission  of  evidence  of  intent,  8. 

contributory  negligence,  85. 

proof  of  contributory  negligence  under  general  denial,  86. 

specific  allegation  of  negligence  not  required,  if  facts  sufficient  to  show 

malpractice,  379. 
necessity  of  allegation  and  proof  of  survival  of  beneficiary  hi  action  for 

death,  402-^04. 

in  action  for  death  by  wrongful  act,  415—417. 
amendments  of  pleading  in  action  for  death,  417. 

POISONS, 

high  degree  of  care  required  of  those  dealing  in  or  handling  poisons,  369. 

POSTAL  CLERKS, 
as  passengers,  188. 

PRESUMPTIONS. 

see  "Evidence." 

losses  on  through  transportation  contract,  295,  296. 
failure  to  give  warning  signals,  339,  340. 
of  ordinary  care  by  one  approaching  a  crossing,  340. 
of  negligence  where  fire  set  out  by  locomotive,  357,  358. 

PRINCIPAL  AND  AGENT, 
see  "Agency." 

PROCESS. 

duty  of  carrier  to  ascertain  validity  of  writ  before  surrendering  goods, 

232. 

care  required  of  officer  in  service,  381. 
duty  of  sheriff  as  to  return  on  writ,  381,  382. 

PROFANITY, 

carrier  may  eject  passenger  for  profanity,  183. 

PROXIMATE  CAUSE, 
defined,  9. 
that  consequence  of  act  ought  to  have  been  foreseen  as  test,  10,  11. 


INDEX.  629 

[The  figures  refer  to  pages.] 
PROXIMATE  CAUSE— Continued, 

test  of  negligence  not  test  of  proximate  cause,  12. 

application  to  railroad  fires,  14. 

causal  connection,  15-17. 

intervening  or  co-operating  cause,  17. 

application  to  union  of  independent  fires,  20. 

infants,  insane  persons,  and  persons  under  duress,  21. 

irresponsible  agent  as  cause,  21. 

"inevitable  accident"  and  "act  of  God,"  21-25. 

contributory  negligence  as  proximate  cause,  36. 

servant's  own  negligence  as  proximate  cause,  152. 

to  relieve  carrier  where  loss  occasioned  by  act  of  God,  such  cause  must 

be  proximate,  228. 
negligent  fires,  351-353. 

to  sustain  action  against  notary  for  negligence,  387. 
for  death  by  wrongful  act,  398-400. 

PUBLIC  BUILDINGS, 

injuries  by  reason  of  defects,  liability  of  municipality,  439,  440. 

PUBLIC  ENEMY, 
defined,  219. 
carrier  not  an  insurer  against  losses  caused  by,  229. 

Q 

<2UASI  MUNICIPAL  CORPORATION, 

see  "Municipal  Corporations." 
defined,  425,  454. 
liability  for  failure  to  maintain  highways  and  bridges,  454-457. 

R 

RAILROADS, 

jumping  from  train  to  escape  collision  as  contributory  negligence,  4. 
care  in  operation  of  trains  at  crossings,  31. 

contributory  negligence  of  one  terrified  by  sudden  appearance  of  train,  41. 
risks  assumed  by  car  couplers,  110,  111. 
liability  for  negligence  of  independent  contractor,  164,  165. 
liability  for  assault  of  brakemau,  168,  169. 
construction  train  as  passenger  carrier,  176. 
roadbed  and  tracks  as  part  of  equipment,  206. 

liability  to  trespasser  for  injuries  where  a  failure  to  comply  with  stat- 
ute, 307. 

degree  of  care  exacted  in  operating,  205,  321,  322. 
care  required  to  avoid  collision  with  person  on  track,  322-329. 
degree  of  care  to  prevent  injuries  proportioned  to  danger,  325-328. 
failure  to  give  statutory  signals  at  crossing  as  negligence,  328,  329. 


630  INDEX. 

[The  figures  refer  to  pages.] 
RAILROADS— Continued, 

duty  of  traveler  at  obscured  crossing,  331,  334,  335. 

traveler  at  crossing  not  relieved  from  duty  to  look  and  listen  by  failure  of 
signal,  332,  333. 

assurance  of  safety  of  crossing  by  agent  as  justifying  omission  to  look  and. 
listen,  334. 

care  required  of  infirm  persons  at  railroad  crossing,  336. 

contributory  negligence  of  traveler  at  crossing,  337-340. 

liability  for  wanton  and  willful  injuries  to  animals,  342,  343. 

duty  after  discovery  of  animals  on  or  near  track,  343,  344. 

liability  for  injuries  to  stock  as  affected  by  failure  to  fence,  345-348. 

negligence  gist  of  liability  for  fire  set  out  by  railroad,  353. 

degree  of  care  required  as  to  fires  set  out  by  railroad,  353-300. 

duty  to  equip  locomotives  with  spark  arresters,  354,  35o. 

duty  to  remove  combustibles  from  right  of  way,  355,  356. 

RECEIVERS, 

liable  to  extent  of  funds  for  negligence,  159. 

not  servants  of  corporation.  159. 

railroad  receivers  as  common  carriers,  215. 

RECORDS, 

liability  of  register  of  deeds  as  to  record  of  instruments,  388. 

REGISTER  OF  DEEDS, 

ministerial  officer,  and  liable  for  negligent  performance  of  duty,  387-389.- 

REPAIRS, 

effect  of  promise  to  repair  on  risk  assumed  by  servant,  120. 
landlord's  liability  as  affected  by  contract  to  repair,  312. 

REPUTATION, 

as  evidence  of  incompetency  of  fellow  servant,  99. 

RIOTS, 

rioters  not  public  enemies,  229. 

RIPARIAN  RIGHTS, 

construction  and  maintenance  of  dams,  318. 

rule  in  United  States,  318. 
in  navigable  waters,  319,  320. 

RISKS, 

assumed  by  servant,  108-145. 
distinction  between  risk  and  condition,  111. 
of  unknown  defects  or  dangers  by  servant,  110. 
dangers  assumed  by  passenger,  205. 

RULES  AND  REGULATIONS, 

duty  of  master  to  make  and  promulgate,  101-105. 
private  rules  of  master  as  affecting  strangers,  104. 


INDEX.  631 

[The  figures  refer  to  pages.] 
RULES  AND  REGULATIONS— Continued, 

of  carrier  requiring  purchase  of  ticket  by  passenger,  194. 

right  of  carrier  to  make  and  enforce  reasonable  rules  and  regulations,  196. 

s 

SANITATION, 

municipality  not  liable  for  failure  to  adopt  proper  sanitary  measures,  453. 
SCIENTER, 

see  "Knowledge." 

SEWERS, 

liability  of  municipality  for  injuries,  432. 
SEX, 

as  affecting  contributory  negligence,  74-76. 

SHERIFFS  AND  CONSTABLES, 

liable  in  damages  to  process  creditor  for  failure  to  exercise  diligence,  381- 

385. 

liability  for  sale  of  exempt  property,  383. 
duty  of  sheriff  as  to  sufficiency  of  levy,  383,  384. 

as  to  sales,  384. 
officer  as  bailee,  384,  385. 
liability  for  escape  of  prisoner,  385. 

SIDEWALKS, 

see  "Municipal  Corporations." 
liability  of  municipality  for  injuries,  432. 

SIGNALS, 

violation  of  statute  requiring  railroad  signals  at  crossings  as  negligence, 

328,  329. 
failure  to  give  signals  does  not  relieve  traveler  from  duty  to  look  and 

listen  at  crossing,  332,  333. 
presumptions  from  failure  to  give  warning  signals,  339,  340. 

SIGNS, 

liability  for  injuries  from  overhanging  signs,  303. 

SLEEPING-CAR  COMPANY, 
not  a  common  carrier,  216. 
liability  for  loss  of  occupant's  baggage,  216,  278. 

SNOW  AND  ICE, 

heavy  snowfall  as  excuse  for  delay  in  delivery  of  goods,  236. 

duty  of  builder  to  prevent  accumulation  of  ice  and  snow,  303. 

rule  as  to  liability  of  city  for  accumulation  in  streets,  433. 

snowstorm  as  act  of  God,  227. 
SPEED, 

duty  of  engineer  to  slacken  on  approaching  crowded  crossing,  326. 


632  INDEX. 

[The  figures  refer  to  pages.] 
SPRING  GUNS, 
see  "Traps." 

STATION, 

intending  passenger  entering  depot  entitled  to  rights  of  passenger,  176- 

178. 

passenger  relation  continues  while  passenger  in  station  at  destination,  179, 
duty  of  carrier  to  announce,  180,  205. 
as  to  stational  facilities,  207-209. 
care  required  of  persons  not  passengers  in  station,  210. 

STATUTES, 

failure  of  defendant  to  perform  duty  required,  effect  on  defense  of  con- 
tributory negligence,  48. 

liability  for  negligence  of  independent  contractor  where  obligation  imposed 
by  statute,  165. 

STEAMBOATS, 

liability  for  unanticipated  accident,  204. 

not  required  to  make  personal  delivery  of  freight,  284-286. 

STOPPAGE  IN  TRANSIT, 

as   excuse  for  nondelivery,   297,  298. 
STORAGE, 

charge  by  carrier  for  delay  by  consignee  in  removing  freight,  288. 

STREET  RAILROADS, 
see  "Carriers." 

STREETS, 

see  "Municipal  Corporations." 

liability  of  municipality  for  injuries  on  street,  432. 
rule  as  to  snow  and  ice,  433. 
liability  of  city  for  improper  occupation  and  use  of  street,  435,  437. 

SUBCONTRACTORS, 

master's  liability  for  negligence  of  subcontractor,  166. 

SUNDAY, 

removal  of  freight  by  consignee  on  Sunday,  not  required,  285. 

SUPERINTENDENCE, 

immaterial  in  determining  fellow-servant  relation  in  federal  court,  142. 

SURGICAL   INSTRUMENTS, 
as  baggage,  270. 

T 

TENDER. 

tender  of  fare  by  passenger  to  prevent  ejection,  184. 

TERROR, 

care  required  of  one  in  terror  caused  by  defendant's  negligence,  40. 


INDEX.  633 

[The  figures  refer  to  pages.] 
THEATER, 

rights  of  patron  to  protection,  170. 

TICKETS, 

not  prerequisite  to  passenger  relation,  193. 
user  of  false  ticket  on  train  a  trespasser,  195. 
as  evidence  of  contract  for  carriage  of  passenger,  197-200. 
provisions  in  tickets  binding  on  passenger,  199,  200. 

acceptance  of  railroad  ticket  as  assent  to  condition  limiting  liability,  258r 
259. 

TIME-TABLES. 

sufficiency  of  publication  of  notice  of  change  of  time,  210. 
as  part  of  contract  of  passenger  transportation,  210. 

TOOLS, 

duty  of  master  as  to  furnishing,  90-97. 
inspection  and  repair  by  master,  95. 
as  baggage,  269. 

TORTS, 

contributory  negligence  not  a  defense  to  willful,  35. 
implied  authority  of  servant  to  commit,  159. 

master's  liability  dependent  on  commission  within  scope  of  servant's  em- 
ployment,  167-171. 
liability  for  servant's  tort  as  dependent  on  hours  of  employment,  171. 

for  independent  tort  of  servant,  172-174. 
liability  of  carrier  for  injuries  by  fellow  passenger,  207. 

TRAPS, 

occupant  of   premises  liable  for  injuries  caused   by  setting   out   spring, 
guns,  308. 

TRESPASSERS, 

plaintiff  as  trespasser,  48. 

not  a  passenger,  195. 

user  of  false  ticket  on  train  a  trespasser,  195. 

care  required  of  occupant  of  premises  towards  trespassers,  307. 

cattle  upon  railroad  track  as  trespassers,  340,  341. 

cattle  crossing  railroad  on  highway  not  trespassers,  348. 

injuries  to  trespasser  by  domestic  animals,  365. 

TRUSTEES, 

liability  of  lessees  and  trustees  as  carriers  of  passengers,  209. 

u 

ULTRA  VIRES, 

liability  of  city  for  acts  ultra  vires,  441,  111  118. 


684  INCEX. 

[The  figures  refer  to  pages.] 

V 

VALUATION, 

by  shipper  as  limiting  liability  for  loss,  247-250. 

VICE  PRINCIPAL, 

see  "Fellow  Servant." 
defined,  131. 

test  of  fellow-servant  relation,  131-142. 
rules  for  determining  in  various  states,  133-146. 
statutory  definition  in  Minnesota,   141. 

VISITORS, 

care  required  of  occupant  of  premises  towards  visitors,  304-307. 

VOLUNTEER, 

as  servant,  129. 

w 

WAR, 

essential  to  constitute  relation  of  public  enemy,  229. 

WAREHOUSEMEN, 

incomplete  delivery  to  carrier  as  creating  warehouseman  relation,  279. 

WATERS  AND  WATER  COURSES, 

see  "Navigable  Waters";    ''Riparian  Rights." 
rights  of  riparian  owners,  317-320. 

construction  and  maintenance  of  dams,  318,  319. 

WATERWORKS, 

liability  of  city  for  injuries  in  construction  of  waterworks,  431. 

WEATHER  RECORDS, 

evidence  on  question  of  snow  or  ice,  434,  435. 

WHARVES, 

duty  of  carrier  by  water  as  to  maintenance  of  wharves,  209. 

WITNESSES, 

see  "Evidence." 
defendant  as  witness  in  action  for  death,  418,  419. 


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THIRD  EDITION:     By  FRANCIS  B.  TIFFANY. 


TABLE   OF   CONTENTS. 


Chapter  I. 

OF  NEGOTIABILITY  SO  FAR  AS  IT  RE- 
LATES TO  BILLS  AND  NOTES  :  Cover- 
ing the  origin,  purpose,  and  indicia  of  nego- 
tiability, distinction  between  negotiability 
,  and  assignability,  and  payment  by  negotia- 
ble instrument. 

Chapter   II. 

OF  NEGOTIABLE  BILLS  AND  NOTES, 
AND  THEIR  FORMAL  AND  ESSEN- 
TIAL REQUISITES  :  Covering  definition, 
form,  and  essentials,  the  order,  the  promise, 
specification  of  parties,  capacity  of  parties, 
delivery,  date,  value  received,  and  days  of 
grace. 

Chapter   III. 

ACCEPTANCE  OF  BILLS  OF  EXCHANGE  : 

Covering  the   various  kinds   of  acceptance, 
and  the  rules  relating  thereto. 

Chapter   IV. 

INDORSEMENT  :  Defining  and  explaining  the 
various  kinds  of  indorsements,  and  showing 
their  requisites  and  effect. 

Chapter  V. 

OF  THE  NATURE  OF  THE  LIABILITIES 
OF  THE  PARTIES  :  Covering  liability  of 
maker,  acceptor,  drawer,  indorser,  rights  and 
liabilities  of  accommodation  and  accommo- 
dated parties,  estoppel  and  warranties,  and 
damages  for  breach. 


Chapter  VI. 

TRANSFER  :  Covering  definition,  validity,  and 
various  methods  of  transfer,  and  status  of 
overdue  paper. 

Chapter  VII. 

DEFENSES  AS  AGAINST  PURCHASER 
FOR  VALUE  WITHOUT  NOTICE  :  Cov- 
ering the  subject  generally  and  fully. 


Chapter  VIII. 

THE  PURCHASER  FOR  VALUE  WITH- 
OUT NOTICE:  Explaining  who  is,  and 
discussing  consideration,  good  faith,  notice, 
overdue  paper,  presumption,  and  burden  of 
proof,  etc. 

Chapter  IX. 

OF  PRESENTMENT  AND  NOTICE  OF  DIS- 
HONOR :  Covering  presentment  for  accept- 
ance and  for  payment,  dishonor,  protest,  no- 
tice of  dishonor,  waiver,  etc. 

Chapter  X. 

CHECKS  :  Covering  generally  the  law  relating 
to  checks. 


APPENDIX:     The     Negotiable     Instruments 
Law. 


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SECOND  EDITION:     By  FRANCIS  B.  TIP,  ANY. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

DEFINITION  OF  CRIME :  The  nature  of  crime 
and  ground  of  punishment. 

CHAPTER  II. 

CRIMINAL  LAW :  How  the  criminal  law  is  pre- 
scribed; the  common  law:  statutes,  and  the 
powers  of  state  and  federal  legislatures. 

CHAPTER  III. 

CLASSIFICATION  OF  CRIMES:  As  treason,  fel- 
onies, misdemeanors,  etc. ;  merger  of  offenses. 

CHAPTER  IV. 

THE  MENTAL  ELEMENT  IN  CRIME:  Con- 
sidering the  will,  intention,  motive,  and  crim- 
inal intention  or  malice. 

CHAPTER  V. 

PERSONS  CAPABLE  OF  COMMITTING  CRIME: 
Covering  also  exemption  from  responsibility, 
and  discussing  infancy,  insanity,  drunkenness, 
ignorance  or  mistake  of  law  or  of  fact,  provo- 
cation, necessity  and  compulsion,  married  wo- 
men and  corporations. 

CHAPTER  VI. 

PARTIES  CONCERNED:  Covering  effect  of 
joining  in  criminal  purpose,  principles  in  first 
and  second  degrees,  accessories  before  and 
after  the  fact,  terms  "aider  and  abettor"  and 
"accomplice. " 

CHAPTER  VII. 

THE  OVERT  ACT:  Covering  also  attempts,  so- 
licitation and  conspiracy. 

CHAPTER  VIII. 

OFFENSES  AGAINST  THE  PERSON:  Cover- 
ing homicide,  murder,  and  manslaughter,  with 
consideration  of  the  different  degrees,  acci- 
dent, self-defense,  etc. 

CHAPTER  IX. 

OFFENSES  AGAINST  THE  PERSON  (Contin- 
ued) :  Covering  abortion,  mayhem,  rape,  sod- 
oiny,  seductiou,  assaults,  false  imprisonment, 
kidnapping,  abduction. 


CHAPTER  X. 

OFFENSES  AGAINST  THE  HABITATION: 
Covering  arson  and  burglary. 

CHAPTER  XI. 

OFFENSES  AGAINST  PROPERTY:  Covering 
larceny,  embezzlement,  cheating  at  common 
law  and  by  false  pretenses,  robbery,  receiving 
stolen  goods,  malicious  mischief,  forgery,  etc. 

CHAPTER  XII. 

OFFENSES  AGAINST  THE  PUBLIC  HEALTH, 
MORALS,  ETC. :  Covering  nuisances  in  gen- 
eral, bigamy,  polygamy,  adultery,  fornication, 
lewdness,  etc. 

CHAPTER  XIII. 

OFFENSES  AGAINST  PUBLIC  JUSTICE  AND 
AUTHORITY:  Covering  barretry,  obstruct- 
ing justice,  embracery,  prison  breach,  mispri- 
sion  of  felony,  compounding  crime,  perjury, 
bribery,  misconduct  in  office,  etc. 

CHAPTER  XIV. 

OFFENSES  AGAINST  THE  PUBLIC  PEACE: 
Covering  dueling,  unlawful  assembly,  riot, 
affray,  forcible  entry  and  detainer,  libels  on 
private  persons,  etc. 

CHAPTER  XV. 

OFFENSES  AGAINST  THE  GOVERNMENT: 
Covering  treason  and  misprision  of  treason. 

CHAPTER  XVI. 

OFFENSES  AGAINST  THE  LAW  OF  NA- 
TIONS: As  piracy. 

CHAPTER  XVII. 

JURISDICTION:  Covering  territorial  limits  of 
states  and  United  States,  jurisdiction  as  deter- 
mined by  locality,  federal  courts  and  the  com- 
mon law,  jurisdiction  conferred  by  congress, 
persons  subject  to  our  laws,  etc. 

CHAPTER  XVIII. 

FORMER  JEOPARDY:     In  general. 


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°f 


.  &.  Cfotft, 


Author  of  a  "  Handbook  of  Criminal  Law." 


CHAPTER  I. 

CONTRACT  IN  GENERAL:  Covering  its  defi- 
nition, nature,,  and  requisites,  and  discussing 
agreement,  obligation,  promise,  void,  voidable, 
and  unenforceable  agreements,  and  the  essen- 
tials of  contract,  etc. 

CHAPTER  II. 

OFFER  AND  ACCEPTANCE:  Covering  im- 
plied contracts,  necessity  for  communication 
and  acceptance,  character,  mode,  place,  time, 
and  effect  of  acceptance,  revocation,  and  lapse 
of  offer,  etc. 

CHAPTER  III. 

CLASSIFICATION  OF  CONTRACTS:  Cover- 
ing contracts  of  record  and  contracts  under 
seal,  and  their  characteristics. 

CHAPTER  IV. 

REQUIREMENT  OF  WRITING:  Covering  also 
statute  of  frauds,  and  discussing  promise  by 
executor,  promise  to  answer  for  another, 
agreements  in  consideration  of  marriage  and 
in  relation  to  land,  and  agreements  not  to  be 
performed  within  a  year,  sufficiency  of  memo- 
randum, etc. 

CHAPTER  V. 

CONSIDERATION:  Covering  the  necessity  for 
consideration,  its  adequacy,  reality,  and  legal- 
ity, failure  of  consideration,  etc. 

CHAPTER  VI. 

CAPACITY  OF  PARTIES:  Covering  political 
and  professional  status,  infants,  insane  and 
drunken  persons,  married  women,  and  corpo- 
rations. 


CHAPTER  VII. 

REALITY  OF  CONSENT:  Covering  mistake, 
misrepresentation,  fraud,  duress,  and  undue 
influence. 

CHAPTER  VIII. 

LEGALITY  OF  OBJECT:  Covering  unlawful 
agreements  in  general,  agreements  in  viola- 
tion of  positive  law  and  those  contrary  to  pub- 
lic policy,  effect  of  illegality,  conflict  of  laws, 
etc. 

CHAPTER  IX. 

OPERATION  OF  .  CONTRACT :  Covering  the 
limits  of  the  contractual  relation,  assignment 
of  contracts,  whether  by  act  of  parties  or  by 
operation  of  law,  joint  and  several  contracts, 
etc. 

CHAPTER  X. 

INTERPRETATION  OF  CONTRACT:  Cover- 
ing the  rules  relating  to  evidence,  proof  of 
document,  rules  of  construction,  penalties  and 
liquidated  damages,  etc. 

CHAPTER  XI. 

DISCHARGE  OF  CONTRACT:  Covering  dis- 
charge by  agreement,  by  performance,  by 
breach,  by  impossibility  of  performance,  by 
operation  of  law,  etc.,  and  remedies  on  breach 
of  contract. 

CHAPTER  XII. 

AGENCY:  Covering  the  creation  of  the  relation, 
its  effect  and  determination,  the  capacity, 
rights,  and  liabilities  of  the  parties,  etc. 

CHAPTER  XIII. 

QUASI  CONTRACT:  Covering  obligations  cre- 
ated by  law  upon  which  an  action  ex  contractu 
will  lie  without  proof  of  contract  in  fact,  in- 
cluding judgments,  obligations  imposed  by 
statute,  acts  of  parties,  etc. 


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Of) 


Juries.) 


°f 


Common 


SECOND  EDITION. 


TABLE   OF  CONTENTS. 


Chapter  I. 

FORMS  OP  ACTION :  Covering  the  nature  and 
classification  of  actions,  real,  personal,  and 
mixed  actions,  assumpsit,  special  and  general, 
debt,  covenant,  account  or  account  rendered. 

Chapter   II. 

FORMS  OF  ACTION  (Continued):  Covering 
trespass,  trover,  case,  detinue,  replevin,  eject- 
ment, writ  of  entry,  forcible  entry  and  detain- 
er, etc. 

Chapter  III. 

THE  PARTIES  TO  ACTIONS:  Covering  actions 
in  form  ex  contractu  and  ex  delicto,  and  the 
consequences  of  misjoinder  or  nonjoinder  of 
parties  plaintiff  or  defendant. 

Chapter  IV. 

THE  PROCEEDINGS  IN  AN  ACTION:  Cover- 
ing process,  the  summons,  writ  of  attachment, 
appearance,  the  declaration,  demurrer,  and  va- 
rious pleas,  amendments,  etc.,  the  verdict,  and 
proceedings  after  the  verdict,  the  judgment, 
and  proceedings  thereafter  to  the  writ  of  exe- 
cution. 

Chapter  V. 

THE  DECLARATION:  Statement  of  cause  of 
action  in  general;  form  of  declaration;  es- 
sential averments  of  declaration  in  special  as- 
sumpsit or  on  common  counts,  in  debt,  cove- 
nant, account,  case,  detinue,  trover,  trespass, 
replevin,  ejectment,  and  trespass  for  mesne 
profits  after  ejectment. 

Chapter  VI. 

THE  PRODUCTION  OF  THE  ISSUE:  Discuss- 
ing the  rules,  and  covering  the  demurrer,  the 
pleadings,  the  traverse,  forms  of  the  general 
issue  and  of  the  special  traverse,  protesta- 
tions, exceptions,  issues  in  fact  and  law,  etc. 


Chapter  VII. 

MATERIALITY  IN  PLEADING:  Covering  the 
general  rule,  variance,  limitation  of  traverse, 
etc. 

Chapter  VIII. 

SINGLENESS  OR  UNITY  IN  PLEADING :  Cov- 
ering the  rules  in  general,  duplicity,  immate- 
rial matter,  inducement,  protestation,  conse- 
quences of  duplicity  and  of  misjoinder,  plea 
and  demurrer,  etc. 

Chapter  IX. 

CERTAINTY    IN    PLEADING:     Covering   the 

venue,  time,  quantity,  quality,  and  value, 
names  of  persons,  shovwing  title  and  author- 
ity, with  subordinate  rules,  and  special  re- 
quirements in  different  stages. 

Chapter  X. 

CONSISTENCY  AND  SIMPLICITY  IN  PLEAD- 
ING :  Covering  insensibility,  repugnancy,  am- 
biguity, argumentative  pleadings,  pleadings 
in  alternative,  positive  statements,  legal  effect, 
conf  ormance  to  precedent,  commencement  and 
conclusion. 

Chapter   XI. 

DIRECTNESS  AND  BREVITY  IN  PLEADING: 
Covering  the  rules  generally,  departure,  pleas 
amounting  to  general  issue,  surplusage,  etc. 

Chapter  XII. 

MISCELLANEOUS  RULES:  Covering  con- 
formance  to  process,  alleging  damages  and 
production  of  suit,  order  of  pleading,  defense, 
plea  in  abatement,  dilatory  pleas,  etc. 

APPENDIX:    Forms. 


This  book  embodies  such  of  the  rules  and  principles  of  Common-Law  Pleading  as  are  still 
recognized  and  applied  in  this  country.  A  knowledge  of  the  common-law  system  is  of  advantage,  if 
indeed,  it  is  not  essential,  to  a  thorough  understanding  of  both  code  and  equity  pleading. 

ONE  VOLUME,  615  PAGES,  $3.75,  DELIVERED. 


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(5) 


(gfocft, 


Author  of  Black's  Law  Dictionary,  Treatises 
on  Judgments,  Tax  Titles,  etc. 


Jjjeconfc  (Sbifton. 

TABLE    OF    CONTENTS. 


Chapter  I. 

DEFINITIONS  AND  GENERAL  PRINCIPLES: 
Considering  the  meaning  of  "Constitutional" 
and  "Unconstitutional;"  written  and  unwrit- 
ten constitutions,  bills  of  rights,  right  of  revo- 
lution, political  and  personal  responsibilities, 
etc. 

Chapter  II. 

THE  UNITED  STATES  AND  THE  STATES: 
Considering  the  nature  of  the  American 
Union,  sovereignty  and  rights  of  the  states 
and  of  the  people,  form  of  government,  the 
Federal  Constitution,  etc. 

Chapter   HI. 

ESTABLISHMENT  AND  AMENDMENT  OF 
CONSTITUTIONS:  Containing  an  historical 
introduction,  and  considering  the  establish- 
ment and  amendment  of  the  Federal  Constitu- 
tion and  of  State  Constitutions. 

Chapter   IV. 

CONSTRUCTION  AND  INTERPRETATION  OF 
CONSTITUTIONS:  Considering  the  office 
and  duty  of  the  judiciary  in  this  direction. 

Chapter   V. 

THE  THREE  DEPARTMENTS  OF  GOVERN- 
MENT: Considering  the  division,  limitations 
on  the  departments,  political  and  judicial 
questions,  etc. 

Chapter   VI. 

THE  FEDERAL  EXECUTIVE:  Considering 
the  election,  qualifications,  impeachment, 
compensation  and  independence  of  the  Presi- 
dent, his  oath  of  office,  veto  power,  pardoning 
and  military  power,  and  treaty-making  power; 
racancy  in  offlcej  the  cabinet,  appointments 
to  office,  presidential  messages,  diplomatic  re- 
lations, authority  to  convene  and  adjourn  con- 
gress, execute  the  laws,  etc. 

Chapter   VII. 

FEDERAL  JURISDICTION:  Considering  the 
jurisdiction,  powers  and  procedure  of  Federal 
courts,  removal  of  causes,  the  United  States 
and  the  states  as  parties,  etc. 

Chapter   VIII. 

THE  POWERS  OF  CONGRESS:  Considering 
the  constitution,  organization  and  government 
of  congress,  its  powers,  and  the  limitations 
thereon. 

Chapter   IX. 

INTERSTATE  LAW,  as  determined  by  the  Con- 
stitution: Considering  its  general  principles, 
the  privileges  of  citizens,  interstate  extradi- 
tion, public  acts  and  judicial  proceedings,  etc. 

Chapter    X. 

REPUBLICAN  GOVERNMENT  GUARANTIED. 


Chapter   XI. 

EXECUTIVE  PO\\ER  IN  THE  STATES. 
Chapter    XII. 

JUDICIAL  POWERS  IN  THE  STATES:  Con- 
sidering the  system  of  courts,  judges,  juris- 
diction, process  and  procedure. 

Chapter   XIII. 

LEGISLATIVE  POWER  IN  THE  STATES :  Con- 
sidering the  organization  and  government  of 
legislature,  limitation  and  delegation  of  legis- 
lative powers,  enactment  of  laws,  etc. 

Chapter   XIV. 

THE  POLICE  POWER:  Considering  the  police 
power  as  vested  in  congress  and  in  the  states, 
and  its  scope  and  limitations. 

Chapter  XV. 

THE  POWER  OF  TAXATION:  Considering 
the  purposes  of  taxation,  independence  of 
Federal  and  State  governments,  limitations  on 
power,  taxation  and  representation,  etc. 

Chapter  XVI. 

THE  RIGHT  OF  EMINENT  DOMAIN:  Defini- 
tion and  nature  of  the  power,  constitutional 
provisions,  authority  to  exercise,  public  pur- 
pos3,  appropriation  to  new  uses,  etc. 

Chapter   XVII. 

MUNICIPAL  CORPORATIONS:  The  nature, 
control,  powers,  officers  and  by-laws  of  mu- 
nicipal corporations,  etc. 

Chapter   XVIII. 

CIVIL  RIGHTS,  AND  THEIR  PROTECTION 
BY  THE  CONSTITUTION:  Considering 
rights  in  general,  liberty,  due  process  of  law, 
vested  rights,  trial  by  jury,  etc. 

Chapter  XIX. 

POLITICAL  AND  PUBLIC  RIGHTS:  Consider 
ing  citizenship,  right  of  suffrage,  freedom  ol 
speech,  right  of  assembly  and  petition,  etc. 

Chapter  XX. 

CONSTITUTIONAL  GUARANTIES  IN  GRIM 
INAL  CASES:  Considering  trial  by  jury, 
rights  of  accused,  jeopardy,  bail,  ei  post  facto 
laws,  habeas  corpus,  etc. 

Chapter  XXI. 

LAWS  IMPAIRING  THE  OBLIGATION  OF 
CONTRACTS:  Considering  the  obligation 
and  the  impairment  ot  the  contract,  power  of 
legislature  to  contract,  remedies  on  contracts, 
etc. 

Chapter    XXII. 

RETROACTIVE  LAWS:  Considering  the  validity 
of  retroactive  statutes,  curative  statutes,  etc. 


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ertee.) 


°f 


QXortnan  Better. 


TABLE    OF    CONTENTS. 


Chapter  I. 

NATURE  AND  DEFINITION  OF  EQUITY. 

Chapter   II. 

PRINCIPLES  DEFINING  AND  LIMITING  JU- 
RISDICTION :  Considering  jurisdiction  over 
crimes,  adequate  legal  remedy,  complete  re- 
lief, and  multiplicity  of  suits. 

Chapter   III. 

THE  MAXIMS  OF  EQUITY:  Definition  and 
classification  of  maxims ;  the  enabling  and  re- 
strictive maxims. 

Chapter   IV. 

THE  DOCTRINES  OF  EQUITY:  Considering 
estoppel,  election,  satisfaction,  performance, 
and  conversion. 

Chapter   V. 

THE  DOCTRINES  OF  EQUITY  (CONTINUED)  : 
Considering  conflicting  rights  of  purchasers, 
assignees,  notice,  bona  fide  purchasers,  priori- 
ties, etc. 

Chapter   VI. 

THE  DOCTRINES  OF  EQUITY  (CONTINUED): 
Considering  penalties  and  forfeitures,  liqui- 
dated damages. 

Chapter   VH. 

GROUNDS  FOR  EQUITABLE  RELIEF:  Con- 
sidering  accident,  mistake,  fraud,  etc. 


Chapter   VIII. 

PROPERTY  IN  EQUITY— TRUSTS:  Covering 
definition,  history,  and  classification  of  trusts, 
charitable  trusts,  duties  and  liabilities  of  trus- 
tees, remedies  of  cestui  que  trust,  etc. 

Chapter   IX. 

PROPERTY  IN  EQUITY  —  MORTGAGES, 
LIENS,  AND  ASSIGNMENTS. 

Chapter   X. 

EQUITABLE  REMEDIES :  Covering  accounting, 
contribution,  exoneration,  subrogation,  and 
marshaling. 

Chapter    XI. 

EQUITABLE  REMEDIES  (CONTINUED):  Cov- 
ering partition  and  settlement  of  boundaries. 

Chapter   XII. 

EQUITABLE  REMEDIES  (CONTINUED):  Cov- 
ering specific  performance,  and  considering 
enforceable  contracts,  grounds  for  refusing  re- 
lief, etc. 

Chapter   XIII. 

EQUITABLE  REMEDIES  (CONTINUED):  Cov- 
ering injunctions,  and  considering  their  juris- 
dictional  principles,  classes  of  cases  where 
remedy  may  be  used,  etc, 

Chapter   XIV. 

REFORMATION,  CANCELLATION,  AND 
QUIETING  TITLE. 

Chapter   XV. 

ANCILLARY  REMEDIES :  Covering  discovery, 
bills  to  perpetuate  testimony,  interpleader, 
receivers,  etc. 


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TABLE  OF  CONTENTS. 


Chapter   I. 

JURISDICTION :  Covering  courts  of  criminal  ju- 
risdiction and  venue. 

Chapter   II. 

APPREHENSION  OF  PERSONS  AND  PROP- 
.  ERTY :    Covering  arrest  in  general,  warrants, 
extradition,  searches  and  seizures  of  property, 
and  taking  property  from  prisoner. 

Chapter   HI. 

PRELIMINARY  EXAMINATION,  BAIL,  AND 
COMMITMENT:  Covering  right  to  release  on 
bail,  hub  -as  corpus,  the  recognizance,  release 
of  sureties,  etc. 

Chapter   IV. 

MODE  OF  ACCUSATION:  Covering  the  Indict- 
ment and  presentment,  information,  coroner's 
inquisition,  time  of  prosecution,  and  nolle 
prosequi,  etc. 

Chapter   V. 

PLEADING  — THE  ACCUSATION:  Covering 
form  of  indictment  in  general,  the  commence- 
ment, and  the  statement  of  offense  and  descrip- 
tion of  defendant. 

Chapter   VI. 

PLEADING  — THE  ACCUSATION  (Continued): 
Covering  allegation  of  intent,  knowledge,  etc. ; 
technical  terms;  second  or  third  offense;  set- 
ting forth  writings;  description  of  property 
and  persons ;  ownership. 

Chapter   VII. 

PLEADING— THE  ACCUSATION  (Continued): 
Covering  statement  of  time  and  place. 


Chapter   VIII. 

PLEADING— THE  ACCUSATION  (Continued): 
Covering  indictments  on  statutes. 

Chapter   IX. 

PLEADING— THE  ACCUSATION  (Continued): 
Covering  duplicity,  joinder  of  counts  and  par- 
ties, election,  conclusion  of  indictment,  amend- 
ment, aider  by  verdict,  etc. 

Chapter   X. 

PLEADING  AND  PRpOF:  Covering  variance 
and  conviction  of  minor  and  higher  offense. 

Chapter   XI. 

MOTION  TO  QUASH:  Covering  also  arraign- 
ment, demurrer,  and  pleas  of  defendant. 

Chapter   XII. 

TRIAL  AND  VERDICT:  Covering  time  and  place 
of  trial,  custody  and  presence  of  defendant, 
bill  of  particulars,  the  counsel,  judge  and  jury, 
arguments  and  instructions,  etc, 

Chapter   XIII. 

PROCEEDINGS  AFTER  VERDICT:  Covering 
motion  in  arrest  of  judgment,  sentence,  new 
trial,  writ  of  error,  etc. 

Chapter   XIV. 

EVIDENCE:  Covering  facts  in  issue,  motive, 
res  gestae,  other  crimes,  declarations,  confes- 
sions, character,  burden  of  proof,  witnesses, 
etc. 

Chapter  XV. 

HABEAS  CORPUS. 


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Author  of  "Tiffany  on  Death  by  Wrongful  Act" 


TABLE  OF  CONTENTS. 


Chapter    I. 

FORMATION  OF  THE  CONTRACT:  Covering 
the  capacity  of  parties,  who  may  sell,  the  thing 
sold,  mutual  assent,  form,  and  price. 

Chapter    II. 

FORMATION  OF  THE  CONTRACT  (Continued) : 
Covering  the  statute  of  frauds. 

Chapter   III. 

EFFECT  OF  THE  CONTRACT  IN  PASSING 
THE  PROPERTY:  Covering  sales  of  specific 
chattels,— unconditional  sales,  conditional  sales, 
sale  on  trial  or  approval,  and  sale  or  return. 

Chapter   IV. 

EFFECT  OF  THE  CONTRACT  IN  PASSING 
THE  PROPERTY  (Continued) :  Covering  sales 
of  chattels  not  specific,  appropriation  of  property 
to  the  contract,  reservation  of  right  of  disposal, 
etc. 

Chapter   V. 

MISTAKE,  FAILURE  OF  CONSIDERATION, 
AND  FRAUD  :  Shovying  the  effect  of  mistake, 
failure  of  consideration,  and  fraud  generally, 
frauds  on  creditors,  the  delivery  necessary  as 
against  creditors  and  purchasers,  etc. 


Chapter   VI. 

ILLEGALITY :  Covering  sales  prohibited  by  the 
common  law,  by  public  policy,  and  by  statute; 
the  effect  of  illegality,  and  the  conflict  of  laws. 

Chapter   VII. 

CONDITIONS  AND  WARRANTIES:  Covering 
conditions  and  war  ranties  generally. 


Chapter   VIII. 

PERFORMANCE:  Covering  fully  delivery,  the 
buyer's  right  of  examination,  acceptance,  and 
payment. 

Chapter   IX. 

RIGHTS  OF  UNPAID  SELLER  AGAINST  THE 
GOODS:  Covering  the  seller's  lien,  stoppage 
in  transitu,  and  the  right  of  resale. 

Chapter    X. 

ACTION  FOR  BREACH  OF  THE  CONTRACT: 
Covering  the  various  remedies  of  the  seller  and 
of  the  buyer. 


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Juries.) 


<>f  Jttf ernafionaf 


Acting  Judge  Advocate, 
United  States  Army. 


TABLE  OF    CONTENTS. 


INTRODUCTION. 

Covering  the  definition,  source,  and  nature  of  In- 
ternational Law. 

Chapter   I. 

PERSONS  m  INTERNATIONAL  LAW:  Cov- 
ering states,  their  loss  of  identity,  various  unions 
of  states,  de  facto  states,  belligerency  and  recog- 
nition thereof,  and  equality  of  states. 

Chapter   II. 

THE  COMMENCEMENT  OF  STATES— FUNDA- 
MENTAL RIGHTS  AND  DUTIES:  Covering 
the  commencement  and  recognition  of  new 
states,  effect  of  change  of  sovereignty,  the  fun- 
damental rights  and  duties  of  states,  etc. 

Chapter   III. 

TERRITORIAL  PROPERTY  OF  A  STATE: 
Covering  modes  of  acquiring  property,  boun- 
daries, territorial  waters,  etc. 

Chapter   IV. 

TERRITORIAL  JURISDICTION:  Covering  ex- 
territoriality, sovereigns  and  diplomatic  agents 
and  their  immunities,  vessels,  right  of  asylum, 
alienage,  responsibility  for  mob  violence,  extra- 
dition, jurisdiction  beyond  state  limits,  etc. 

Chapter   V. 

JURISDICTION  ON  THE  HIGH  SEAS  AND 
UNOCCUPIED  PLACES:  Covering  nature  of 
jurisdiction,  jurisdiction  over  merchant  ships, 
piracy,  privateers,  letters  of  marque,  slave 
trade,  etc. 

Chapter   VI. 

THE  AGENTS  OF  A  STATE  IN  INTERNA- 
TIONAL RELATIONS:  Covering  public  diplo- 
matic agents  and  consuls,  and  matters  relating 
to  them. 

Chapter   VII. 

INTERVENTION :  Covering  the  subject  gener- 
ally. 

Chapter   VIII. 

NATIONALITY:  Covering  citizenship,  allegi- 
ance, expatriation,  naturalization,  etc. 


TREATIES: 


Chapter   IX. 

Covering  the  subject  generally. 


Chapter   X. 

AMICABLE  SETTLEMENT  OF  DISPUTES: 
Covering  mediation,  arbitration,  retorsion,  re- 
prisals, embargo,  pacific  blockade,  etc. 

Chapter   XI. 

INTERNATIONAL  RELATIONS  IN  WAR: 
Covering  the  subject  of  war  generally,  includ- 
ing the  kinds,  causes,  and  objects  of  war. 

Chapter   XII. 

EFFECTS  OF  WAR— AS  TO  PERSONS:  Cov- 
ering the  relations  of  enemies,  noncombatants, 
privateers,  prisoners  of  war,  and  the  subjects  of 
ransom,  parole,  etc. 


Chapter   XIII. 

EFFECTS  OF  WAR  — AS  TO  PROPERTY: 
Covering  contributions,  requisitions,  foraging, 
booty,  ransom,  and  other  questions  in  regard 
to  property. 

Chapter   XIV. 

POSTLIMINIUM:  The  right  and  its  limitations 
defined  and  explained. 

Chapter   XV. 

MILITARY  OCCUPATION:  Covering  the  defi- 
nition, extent,  and  effect  of  occupation,  and  the 
duties  of  an  occupant. 

Chapter   XVI. 

MEANS  OF  CARRYING  ON  HOSTILITIES: 
Covering  the  instruments  and  means  of  war, 
spies,  etc. 

Chapter   XVII. 

ENEMY  CHARACTER:  Covering  enemies  gen- 
erally, domicile,  houses  of  trade,  property  and 
transfer  thereof,  etc. 

Chapter   XVIII. 

NON-HOSTILE  RELATIONS:  Covering  com- 
.mercia  belli,  flags  of  truce,  passports,  safe-con- 
ducts, truces  or  armistices,  cartels,  etc. 

Chapter    XIX. 

TERMINATION  OF  WAR:  Covering  the  meth- 
ods of  termination,  uti  possidetis,  treaties  of 
peace,  conquest,  etc. 

Chapter   XX. 

OF  NEUTRALITY  IN  GENERAL:  Neutrality 
defined  and  explained. 

Chapter   XXI. 

THE  LAW  OF  NEUTRALITY  BETWEEN  BEL- 
LIGERENT AND  NEUTRAL  STATES:  Cov- 
ering the  rights,  duties,  and  liabilities  of  neutral 
states. 

Chapter   XXII. 

CONTRABAND :    Covering  the  subject  generally. 

Chapter  XXIII. 
BLOCKADE :    Covering  the  subject  generally. 

Chapter  XXIV. 

VISIT  AND  SEARCH,  AND  RIGHT  OF  AN- 
GARY: Covering  those  subjects  generally. 

APPENDIX. 

Giving  in  full,  as  in  no  other  single  work,  the  In- 
structions for  the  Government  of  Armies  of  the 
United  States  in  the  Field  (Lieber) ;  Papers  Car- 
ried, or  that  Ought  to  be  Carried,  by  Vessels  in 
Evidence  of  their  Nationality;  The  Declaration 
of  Paris;  The  Declaration  of  St.  Petersburg; 
The  Geneva  Convention  for  the  Amelioration  of 
the  Condition  of  the  Sick  and  Wounded  of  Ar- 
mies in  the  Field ;  The  Laws  of  War  on  Land, 
(Recommended  for  Adoption  by  the  Institute  of 
International  Law  at  Oxford,  Sept.  9, 1880) ;  and 
The  Brussels  Conference. 


1   VOLUMH.     500   PAGES.      S3. 75,   DELIVERED. 

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(10) 


°f 


of 


(Bbtrtn  (&.  Safari),  (&.  (ttt., 

Professor  of  the  Law  of  Torts  in  the  Minnesota  University  Law  School. 


TABLE   OF   CONTENTS. 


PART  I.— IN   GENERAL. 

Chapter   I. 

GENERAL  NATURE  OF  TORTS :  Covering  the 
law  adjective  and  law  substantive,  distinctions 
between  torts  and  crimes,  common-law  obliga- 
tions and  remedies,  how  and  why  liability  at- 
taches for  torts,  the  mental  element,  connec- 
tion as  cause,  damnum  and  injuria,  common- 
law,  contract  and  statutory  duties,  etc. 

Chapter    II. 

VARIATIONS  IN  THE  NORMAL  RIGHT  TO 
TO  SUE:  Covering  exemptions  based  on 
privilege  of  actor,  as  public  acts  of  states,  of 
judicial  and  executive  officers,  etc.,  and  private 
acts  authorized  by  statute  or  common  law, 
variations  based  on  status  or  conduct  of  plain- 
tiff, etc. 

Chapter  HI. 

LIABILITY  FOR  TORTS  COMMITTED  BY  OR 
WITH  OTHERS:  Covering  liability  by  con- 
cert in  action  or  joint  torts,  and  liability  by 
relationship,  as  husband  and  wife,  landlord 
and  tenant,  master  and  servant,  partners,  etc. 

Chapter  IV. 

DISCHARGE  AND  LIMITATION  OF  LIABILI- 
ITY  FOR  TORTS:  Covering  discharge  or 
limitation  by  voluntary  act  of  party  and  by 
operation  of  law. 

Chapter  V. 

REMEDIES:  Covering  statutory  and  common- 
law  remedies,  judicial  and  extrajudicial  reme- 
dies, damages,  etc. 

PART  II.— SPECIFIC  WRONGS. 
Chapter  VI. 

WRONGS  AFFECTING  SAFETY  AND  FREE- 
DOM OF  PERSONS:  Covering  false  impris- 
onment, assault  and  battery,  and  the  defenses, 
as  justification  and  mitigation. 


Chapter  VII. 

INJURIES  IN  FAMILY  RELATIONS:  Cover- 
ing the  family  at  common  law.  master  and 
servant,  parent  and  child,  husband  and  wife. 

Chapter  VHI. 

WRONGS  AFFECTING  REPUTATION:  Cover- 
ing libel,  slander,  and  slander  of  title,  together 
with  the  defenses. 

Chapter   IX. 

MALICIOUS  WRONGS:  Covering  deceit,  mali- 
cious prosecution,  abuse  of  process,  interfer- 
ence with  contract,  conspiracy,  etc. 

Chapter  X. 

WRONGS  TO  POSSESSION  AND  PROPERTY: 
Covering  the  nature  of  possession  and  its  ob- 
jects, trespass,  waste,  conversion,  etc. 

Chapter    XI. 

NUISANCE:  Covering  kinds  of  nuisance,  as  pub- 
lic, private,  and  mixed,  continuing  and  legal- 
ized, parties  to  proceedings  against,  remedies, 
etc. 

Chapter  XII. 

NEGLIGENCE:  Covering  the  duty  to  exercise 
care,  what  is  commensurate  care,  common-law, 
contract  and  statutory  duties,  damages,  con- 
tributory negligence,  etc. 

Chapter   XIII. 

MASTER  AND  SERVANT:  Covering  master's 
liability  to  servant  for  negligence,  master's 
duty  to  servant,  assumption  of  risk  by  serv- 
ant, various  kinds  of  risks,  fellow  servants, 
vice  principals,  etc. 

Chapter   XIV. 

COMMON  CARRIERS:  Covering  the  subject 
generally. 


2  VOLS.     1,328   PAGES.     $7.50,    DELIVERED. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 


(11) 


of  .... 


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QX,    ui      r>  AH/iDranri   I   I      01    A^u-    AUTHOR  OF  BLACK'S  LAW  DICTIONARY.  AND  TRE 
DY    Pi.    wMlvlr'tJtiL.L-L.    Dl_MOI\,  TISES  O.M  co \ISTITUTIONAL  LAW,  JUDGMENTS,  ET 


TABLE   OF   CONTENTS. 


Chapter  I. 

NATURE  AND  OFFICE  OF  INTERPRE- 
TATION: Covering  definition  of  terms,  ob- 
ject of  interpretation,  rules  of  construction, 
and  office  of  judiciary. 

Chapter  II. 

CONSTRUCTION     OF      CONSTITUTIONS: 

Covering  method  and  rules  of  construction, 
construction  as  a  whole,  common  law  and  pre- 
vious legislation,  retrospective  operation,  man- 
datory and  directory  provisions,  preamble  and 
titles,  extraneous  aids,  schedule,  stare  decisis, 
etc. 

Chapter   III. 

GENERAL  PRINCIPLES  OF  STATUTORY 
CONSTRUCTION:  Covering  literal  and  eq- 
uitable construction,  scope  and  purpose  of  the 
act,  casus  omissus,  implications  in  statutes, 
meaningless  statutes,  errors,  misprints,  sur- 
plusage, interpolation  of  words,  etc. 

Chapter  IV. 

STATUTORY  CONSTRUCTION;  PRE- 
SUMPTIONS: Covering  presumptions  against 
exceeding  limitations  of  legislative  power,  un- 
constitutionality,  injustice,  irrepealable  laws, 
implied  repeal  of  laws,  etc.,  presumptions  as 
to  public  policy,  as  to  jurisdiction  of  courts, 
etc. 

Chapter   V. 

STATUTORY  CONSTRUCTION;  WORDS 
AND  PHRASES.  Covering  technical  and 
popular  meaning  of  words,  commercial  and 
trade,  general  and  special,  relative  and  qual- 
ifying, and  permissive  and  mandatory  terms; 
conjunctive  and  disjunctive  particles,  adopted 
and  re-enacted  statutes,  computation  of  time, 
etc. 

Chapter  VI. 

INTRINSIC  AIDS  IN  STATUTORY  CON- 
STRUCTION: Covering  construction  as  a 
whole,  context,  title,  preamble,  interpretation 
clause,  etc. 

Chapter  VII. 

EXTRINSIC  AIDS  IN  STATUTORY  CON- 
STRUCTION: Covering  admissibility  of  ex- 
trinsic aids,  statutes  in  pari  materia,  con- 
temporary history,  construction  and  usage, 
journals  of  legislature,  opinions  of  legislators, 
etc. 

Chapter    VIII. 

INTERPRETATION  WITH  REFERENCE 
TO  COMMON  LAW:  Covering  statutes  af- 
firming, supplementing,  superseding  or  in 
derogation  of,  common  law. 


Chapter   IX. 

RETROSPECTIVE         INTERPRETATIOl 

Covering  definition,  constitutional  consider 
tions,  vested  rights,  remedial  statutes,  ar 
statutes  regulating  procedure. 

Chapter   X. 

CONSTRUCTION  OF  PROVISOS.  EXCE1 
TIONS,  AND  SAVING  CLAUSES:  Co 
ering  the  subject  generally. 

Chapter    XI. 

STRICT  AND  LIBERAL  CONSTRUCTIOI 
Covering  penal  and  remedial  statutes,  sta 
utes  against  common  right,  against  fraud 
and  of  limitation,  legislative  grants,  revem 
and  tax  laws,  etc. 

Chapter  XII. 

MANDATORY  AND  DIRECTORY  PROV 
SIGNS:  Definitions  and  rules  covering  tl 
subject  generally. 

Chapter   XIII. 

AMENDATORY     AND    AMENDED    ACT! 

Covering  construction  of  amendments  and  < 
statute  as  amended,  identification  of  act  to  1 
amended,  amendment  by  way  of  revision,  el 

Chapter   XIV. 

CONSTRUCTION  OF  CODES  AND  R] 
VISED  STATUTES:  Covering  constructs 
as  a  whole,  reference  to  original  statute 
change  of  language,  previous  judicial  constru 
tion,  etc. 

Chapter    XV. 

DECLARATORY  STATUTES:  Covering  de 
nition  and  construction  in  general. 

Chapter   XVI. 

THE  RULE  OF  STARE  DECISIS  AS  A1 
PLIED  TO  STATUTORY  CONSTRU* 
TION:  Covering  the  general  principle,  r 
versal  of  construction,  federal  courts  follow 
ing  state  decisions,  construction  of  statutes 
other  states,  etc. 

Chapter   XVII. 

INTERPRETATION  OF  JUDICIAL  DEC 
SIGNS  AND  THE  DOCTRINE  OF  PRE< 
EDENTS:  Cofering  the  nature  of  prec 
dents;  dicta;  stare  decisis;  the  force  of  prec 
dents  as  between  different  courts;  the  law  < 
the  case,  etc. 


1    VOLUME.      5O9    PAGES.      $3  75,    DELIVERED. 

-       ST.  PAUL,  MINIS 


WEST  PUBLISHING  CO., 

C775 


|)orn6oo8  Juries.) 


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Q0aifmen(0  anb  Carriers* 


TABLE    OF    CONTENTS. 


Chapter  I. 

IN  GENERAL:  Covering  definition  and  gen- 
eral principles  common  to  all  bailments; 
classification  of  bailments. 

Chapter  II. 

BAILMENTS  FOR  SOLE  BENEFIT  OF 
BAILOR:  Covering  depositum  and  man- 
datum,  creation,  rights  and  liabilities  of 
parties,  termination,  etc. 

Chapter    III. 

BAILMENTS  FOR  BAILEE'S  SOLE  BEN- 
EFIT: Commodatum,  creation,  rights  and 
liabilities  of  parties,  termination,  etc. 

Chapter  IV. 

BAILMENTS  FOR  MUTUAL  BENEFIT- 
PLEDGES:  Covering  definition  of  pledge, 
creation,  title  of  pledger,  rights  and  liabil- 
ities of  parties  before  and  after  default,  ter- 
mination, etc. 

Chapter    V. 

BAILMENTS  FOR  MUTUAL  BENEFIT- 
HIRING:  Locatio  or  hiring  defined:  estab- 
lishment of  relation;  rights  and  liabilities 
of  parties;  hiring  of  things  for  use:  hire  of 
labor  and  services;  warehousemen;  wharf- 
ingers; safe-deposit  companies;  factors,  etc.; 
termination  of  relation,  etc. 


Chapter  VI. 

INNKEEPERS:  Innkeeper  defined;  who  are 
guests;  commencement  of  relation;  duty 
to  receive  guest;  liability  for  guests'  goods; 
lien;  termination  of  relation;  liability  as 
ordinary  bailee,  etc. 

Chapter   VTI. 

CARRIERS  OF  GOODS:  Common  carriers, 
essential  characteristics;  when  liability  at- 
taches; discrimination;  compensation;  lien; 
liability  as  insurers  and  as  ordinary  bailees; 
carriers  of  live  stock;  carriers  of  baggage; 
contracts  and  notices  limiting  liability;  ter- 
mination of  liability;  connecting  carriers. 
etc.;  post-office  department;  private  car- 
riers. 

Chapter    VIII. 

CARRIERS  OF  PASSENGERS:  Who  are 
passengers;  when  liability  attaches;  duty 
to  accept  passengers;  furnishing  equal  ac- 
commodations: ticket  as  evidence  of  pas- 
senger's rights;  right  to  make  regulations; 
injuries  to  passengers;  contracts  limiting 
liability;  termination  of  liability;  ejection 
from  vehicle:  connecting  carriers,  and  cov- 
ering the  subject  generally. 

Chapter    IX. 

ACTIONS  AGAINST  CARRIERS:  Actions 
against  carriers  of  goods  and  carriers  of 
passengers:  parties:  form  of  action;  plead- 
ing; evidence;  damages. 


1  VOLUME.  675  PAGES.  83.75,  DELIVERED. 


i>orn6oo6 


(Bfemenf  arg 


(gg  Wdffer  ©enfon  ^mtflj, 

Instructor  in  the  Law  Department  of  the  University  of  Michigan, 


TABLE   OF   CONTENTS. 


Part  I-ELEMENTARY  JURISPRUDENCE. 

CHAPTER   I. 

NATURE  OP  LAW  AND  THE  VARIOUS  SYSTEMS: 
Moral,  divine,  municipal,  international,  mari- 
time and  martial  law. 

CHAPTER    IT. 

GOVERNMENT  AND  ITS  FUNCTIONS:  Covering 
sovereignty,  the  state,  the  constitution,  and  the 
forms  and  functions  of  government  generally. 

CHAPTER    HI. 

GOVERNMENT  IN  THE  UNITED  STATES:  Its 
general  character,  sovereignty,  distribution  of 
powers,  citizenship,  etc. 

CHAPTER   IV. 

THE  UNWRITTEN  LAW:  The  Roman,  the  Canon 
and  the  Common  law. 

CHAPTER  V. 

EQUITY:  Nature  and  jurisdiction  of  equity;  max- 
ims. 

CHAPTER   VI. 

THE  WRITTEN  LAW:  Relation  to  unwritten  law; 
statutory  law  in  general. 

CHAPTER   VII. 

THE  AUTHORITIES  AND  THEIR  INTERPRETA- 
TION: The  rank  of  authorities,  rules  of  inter- 
pretation, statutory  construction,  etc. 

CHAPTER   VHI. 

PERSONS  AND  PERSONAL  RIGHTS:  Legal 
rights,  wrongs  and  remedies,  rights  in  rem  and 
in  personam,  status,  personal  security,  liberty, 
property,  constitutional  guaranties,  etc. 

CHAPTER  IX. 

PROPERTY:  Covering,  ownership  and  possession; 
the  Feudal  system;  corporeal  and  incorporeal, 
real  and  personal,  property;  fixtures,  etc. 

CHAPTER   X. 

CLASSIFICATION  OF  THE  LAW:  Substantive 
and  adjective,  public  and  private  law,  etc. 

Part  II— THE  SUBSTANTIVE  LAW. 

CHAPTER    XI. 

CONSTITUTIONAL  AND  ADMINISTRATIVE  LAW: 
Written  and  unwritten  constitutions,  essentials 
and  construction  of  constitutions;  administra- 
tive law,  etc. 

CHAPTER    XII. 

CRIMINAL  LAW:  Covering  its  general  nature, 
criminal  capacity,  classification  of  crimes,  pun- 
ishment, etc. 

CHAPTER    XIII. 

THE  LAW  OF  DOMESTIC  RELATIONS:  Cover- 
ing marriage  and  its  incidents,  parent  and  child, 
guardian  and  ward,  master  and  servant,  etc. 


CHAPTER   XIV. 

CORPOREAL  AND  INCORPOREAL  HEREDITA- 
MENTS: Covering  the  subject  generally. 

CHAPTER   XV. 

ESTATES  IN  REAL  PROPERTY:  Classification, 
estates  In  possession  and  in  expectancy;  free- 
holds and  estates  less  than  freehold;  estates  in 
severally,  in  joint  tenancy  and  in  common;  ab- 
solute and  conditional,  legal  and  equitable  es- 
tates ;  etc. 

CHAPTER    XVI. 

TITLES  TO  REAL  PROPERTY:  Covering  title  by 
descent  and  by  purchase,  classification  and 
forms  of  deeds,  etc. 

CHAPTER   XVTI. 

PERSONAL  PROPERTY:  Real  and  personal  chat- 
tels, ownership  of  personal  property,  acquisition 
of  title,  etc. 

CHAPTER   XVin. 

SUCCESSION  AFTER  DEATH:  Testate  and  intes- 
tate succession,  escheat,  executors  and  adminis- 
trators, etc. 

CHAPTER    XIX. 

CONTRACTS:  Definition,  validity  and  classification 
of  contracts,  quasi  contracts,  etc. 

CHAPTER   XX. 

SPECIAL  CONTRACTS:  Covering  contracts  of 
sale,  bailments,  negotiable  contracts,  suretyship, 
insurance,  etc. 

CHAPTER   XXL 

AGENCY:    Covering  the  subject  generally. 

CHAPTER    XXII. 

COMMERCIAL  ASSOCIATIONS:  Covering  part- 
nerships, joint  stock  companies,  voluntary  asso- 
ciations, corporations,  etc. 

CHAPTER   XXIIL 

TORTS:  Covering  the  nature  and  elements  of  torts, 
proximate  and  remote  cause  and  specific  torts. 

Part  III— THE  ADJECTIVE  LAW. 

CHAPTER    XXIV. 

REMEDIES:  Extralegal  and  legal,  penal  and  civil, 
common  law  and  equitable,  ordinary  and  extraor- 
dinary remedies. 

CHAPTER    XXV. 

COURTS  AND  THEIR  JURISDICTION:  Covering 
the  subject  generally. 

CHAPTER    XXVI. 

PROCEDURE:  In  general;  outlines  of  common 
law,  equity,  code,  and  criminal  procedure. 

CHAPTER    XXVII. 

TRIALS:    Early  forms,  trial  procedure,  evidence. 


1   VOL.     367   PAGES.     $3.75,   DELIVERED. 


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C1112  U4) 


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Of 


Author  of  "Bailments  and  Carriers.1 


TABLE    OF    CONTENTS. 


CHAPTER  I. 

DEFINITIONS  AND  GENERAL  PRINCIPLES: 
Definition,  nature  and  theory  of  damages; 
•wrong  and  damage;  analysis  of  legal  wrongs; 
classification  of  damages. 

CHAPTER    H, 

NOMINAL  DAMAGES:  Definition  and  general  na- 
ture. 

CHAPTER   m. 

COMPENSATORY  DAMAGES:  Definition;  proxi- 
mate and  remote  consequences;  direct  and  con- 
sequential losses;  avoidable  consequences;  cer- 
tainty of  damages;  profits;  entirety  of  demand; 
past  and  future  losses;  elements  of  compensa- 
tion; aggravation  and  mitigation  of  damages; 
reduction  of  loss;  injuries  to  limited  Interests, 
etc. 

CHAPTER    IV. 

BONDS,  LIQUIDATED  DAMAGES  AND  ALTERNA- 
TIVE CONTRACTS:  Covering  the  subject  gen- 
erally. 

CHAPTER   V. 

INTEREST:  Definition:  as  a  debt  and  as  damages; 
interest  on  liquidated  and  unliquidated  de- 
mands; on  overdue  paper, — contract  and  stat- 
ute rate;  compound  Interest;  etc. 

CHAPTER   VI. 

VALUE:  Definition;  how  estimated;  market  value; 
pretium  affectionis;  value  peculiar  to  owner; 
time  and  place  of  assessment;  highest  Interme- 
diate value ;  etc. 

CHAPTER    VII. 

EXEMPLARY  DAMAGES:  In  general;  when  re- 
coverable; liability  of  principal  for  act  of  agent; 
etc. 

CHAPTER    VTII. 

PLEADING  AND  PRACTICE:  Allegation  of  dam- 
age, the  ad  damnum,  form  of  statement,  prov- 
ince of  court  and  jury,  etc. 


CHAPTER  IX. 

BREACH  OP  CONTRACTS  FOR  SALE  OP  GOODS: 
Damages  In  action  by  seller  for  non-acceptance 
and  non-payment;  damages  in  action  by  buyer 
for  non-delivery,  breach  of  warranty,  and  as  for 
conversion. 

CHAPTER   X. 

DAMAGES  IN  ACTIONS  AGAINST  CARRIER: 
Carriers  of  goods, — refusal  to  transport,  non- 
delivery, Injury  In  transit,  delay,  consequential 
damages;  carriers  of  passengers, — injuries  to 
passenger  exemplary  damages,  mental  suffering, 
delay,  wrongful  ejection,  etc. 

CHAPTER    XI. 

DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH 
COMPANIES:  Actions  by  sender  and  by  receiv- 
er; proximate  and  certain,  remote  and  specula- 
tive damages;  notice  of  purpose  and  importance 
'  of  message;  cipher  messages;  avoidable  conse- 
quences; exemplary  damages;  etc. 

CHAPTER    XII. 

DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT: 
Pecuniary  losses;  mental  suffering:  exemnlary 
damages;  Injury  to  deceased;  medical  and  fu- 
neral expenses;  meaning  of  pecuniary,  —care  and 
support,  prospective  gilts  and  inheritances;  in- 
terest as  damages;  discretion  of  jury;  nominal 
damages,  etc. 

CHAPTER    XIII. 

WRONGS  AFFECTING  REAL  PROPERTY:  Dam- 
ages for  detention  of  real  property;  trespass; 
nuisance;  waste;  contract  to  sell  real  property, 
— breach  by  vendor  or  vendee;  breach  of  cove- 
nants, etc. 

CHAPTER    XIV. 

BREACH  OF  MARRIAGE  PROMISE:  In  general, 
compensatory  damages,  exemplary  damages,  etc. 


1  VOL.    476  PAGES.     $3.75,  DELIVERED. 


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Cllll  (15) 


fjornfiooft 


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Saw  of  (Keaf 


(Bdrf     . 


TABLE   OF   CONTENTS. 


Chapter  I. 

WHAT  IS  REAL  PROPERTY:  Real  and 
personal  property,  fixtures,  equitable  conver- 
sion, personal  interests  in  land. 

Chapter    II. 

TENURE  AND  SEISIN. 

Chapter  III. 

ESTATES  AS  TO  QUANTITY— PEE  SIM- 
PLE: Classification  of  estates,  freehold, 
fee-simple,  creation,  right  of  user  and  aliena- 
tion. 

Chapter  IV. 

ESTATES  AS  TO  QUANTITY  (Continued)- 
ESTATES  TAIL:  Classes,  origin,  crea- 
tion, incidents,  duration,  tenant  in  tail  aft- 
er possibility  of  issue  extinct,  estates  tail  in 
the  United  States,  quasi  entail. 

Chapter  V. 

ESTATES  AS  TO  QUANTITY  (Continued— 
CONVENTIONAL       LIFE       ESTATES: 
Life  estates,  creation,  conventional  life  es- 
'  tates,  incidents,  estates  per  autre  vie. 

Chapter  VI. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
LEGAL  LIFE  ESTATES:  Estate  during 
coverture,  curtesy,  dower,  homestead,  fed- 
eral homestead  act. 

Chapter  VII. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
LESS  THAN  FREEHOLD:  Estates  for 
years,  letting  land  on  shares,  tenancies  at 
will,  tenancies  from  year  to  year,  letting  of 
lodgings,  tenancies  at  sufferance,  licenses. 

Chapter   VIII. 

ESTATES  AS  TO  'QUALITY  ON  CONDI- 
TION—ON LIMITATION:  Estates  on 
condition,  estates  on  limitation,  base  fees. 

Chapter   IX. 

ESTATES  AS  TO  QUALITY  (Continued)- 
MORTGAGES:  Parties,  nature,  form, 
rights  and  liabilities  of  mortgagor  and  mort- 
gagee, assignment  of  the  equity  of  redemp- 
tion, -assignment  of  the  mortgage,  priority 
of  mortgages  and  other  conveyances,  regis- 
tration, discharge  of  a  mortgage. 


Chapter   X. 

EQUITABLE  ESTATES:  Statute  of  nsef 
classification  of  trusts, — express,  implied 
resulting,  constructive,— incidents  of  equita 
ble  estates,  charitable  trusts. 

Chapter    XI. 

ESTATES  AS  TO  TIME  OF  ENJOYMENr 
—FUTURE  ESTATES:  Reversions,  poss: 
bilities  of  reverter,  remainders,  rule  in  She! 
ley's  Case,  future  uses,  springing  uses 
shifting  uses,  executory  devises,  incident 
of  future  estates. 

Chapter  XII. 

ESTATES  AS  TO  NUMBER  OF  OWNER! 
—JOINT  ESTATES:  Joint  tenancies,  ter 
ancles  in  common,  estates  in  coparcenarj 
estates  in  entirety,  estates  in  partnership 
incidents  of  joint  estates,  partition. 

Chapter   XIII. 

INCORPOREAL  HEREDITAMENTS 

Easements,  creation,  classification,  inci 
dents,  destruction,  rights  of  way,  highways 
light  and  air,  lateral  and  subjacent  sup 
port,  party  walls,  easements  in  water,  prof 
its  a  preiidre,  rents,  franchises. 

Chapter   XIV. 

LEGAL  CAPACITY  TO  HOLD  AND  CON 
VEY  REALTY:  Infants,  persons  of  un 
sound  mind,  married  women,  aliens,  corpc 
rations. 

Chapter    XV. 

RESTRAINTS  ON  ALIENATION:  Re 
straints  imposed  by  law,  restraints  in  favo 
of  creditors,  restraints  imposed  in  creatio; 
of  estate. 

Chapter   XVI. 

TITLE:  Acquisition  of  title  by  state  and  pri 
vate  persons,  grant  from  state,  conveyan 
ces,  common-law  conveyances,  conveyance 
under  statute  of  uses,  modern  statutory  con 
veyances,  registered  titles,  requisites  o 
deeds;  covenants  for  title,  seisin,  agains 
incumbrances,  warranty,  further  assurance 
estoppel,  adverse  possession,  accretion,  de 
vise,  descent,  judicial  process;  conveyance 
under  licenses,  under  duress;  tax  titles,  em 
ineut  domain. 


1  VOL.     589  PAGES.     $3.75,  DELIVERED. 


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£atx>  of  (persona  anb  ©omcetic  Q&cfaftoner, 

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TABLE    OF 
PART  I. 

HUSBAND  AND  WIFE. 
Chapter    I. 

MARRIAGE:  Covering  definition  and  essen- 
tials; capacity  of  parties;  reality  of  con- 
sent; formalities  in  celebration;  annul- 
ment and  avoidance;  validating  acts;  con- 
flict of  laws,  etc. 

Chapter    II. 

PERSONS  OF  THE  SPOUSES  AS  AP- 
•  FECTED  BY  COVERTURE:  Covering 
rights  inter  se;  crimes  and  torts  of  married 
women;  crimes  and  torts  as  between  hus- 
band and  wife;  torts  against  married  wo- 
men; actions  for  alienation  of  affections; 
crim.  con.,  etc. 

Chapter  III. 

RIGHTS  IN  PROPERTY  AS  AFFECTED 
BY  COVERTURE:  Covering  wife's  earn- 
ings; wife's  choses  in  action  and  in  posses- 
sion; wife's  chattels  real;  administration 
of  wife's  estate;  equitable  and  statutory 
separate  estate;  community  property;  cur- 
tesy;  dower;  estates  by  the  entirety,  etc. 

Chapter  IV. 

CONTRACTS,  CONVEYANCES,  ETC., 
AND  QUASI-CONTRACTUAL  OBLI- 
GATIONS: Covering,  inter  alia,  husband's 
liauility  lor  wife's  necessaries,  antenuptial 
debts,  and  funeral  expenses;  wife  as  a  sole 
trader;  wife  as  husband's  agent;  convey- 
ances, sales,  and  gifts  by  the  wife,  etc. 

Chapter  V. 

WIFE'S  EQUITABLE  AND  STATUTORY 
SEPARATE  ESTATE:  Covering  their 
nature;  jus  disponendi;  power  to  charge  by 
contract,  etc. 

Chapter  VI. 

ANTENUPTIAL  AND  POSTNUPTIAL 
SETTLEMENTS:  Covering  the  subject 
generally,  including  marriage  as  a  consid- 
eration; the  statute  of  frauds;  validity 
against  creditors  and  purchasers,  etc. 

Chapter  VII. 

SEPARATION  AND  DIVORCE:  Covering 
agreements  for  separation;  jurisdiction  to 
grant  divorce;  grounds  for  divorce;  de- 
fenses in  actions  for  divorce;  legislative  di- 
vorce, etc. 

PART  II. 
PARENT  AND  CHILD. 

Chapter    VIII. 

LEGITIMACY.  ILLEGITIMACY,  AND 
ADOPTION:  Covering  legitimacy  of  chil- 
dren; adoption  of  children;  status  of  illegiti- 
mate children. 


CONTENTS. 

Chapter    IX. 

DUTIES  AND  LIABILITIES  OF  PAR- 
ENTS: Maintenance,  protection,  and  edu- 
cation of  child;  allowance  out  of  child's 
estate;  child  as  parent's  agent;  parent's  lia- 
bility for  crimes  and  torts  of  child,  etc. 

Chapter    X. 

RIGHTS  OF  PARENTS  AND  OF  CHIL- 
DREN: Right  to  custody;  service  and 
earnings  of  child;  correction  of  child; 
emancipation  of  children;  action  by  parent 
for  injuries  to  child;  gifts,  contracts,  and 
conveyances  between:  advancements;  duty 
to  support  parent;  domicile  of  child,  etc. 

PART  III. 

GUARDIAN  AND  WARD. 
Chapter    XI. 

GUARDIANS  DEFINED  —  SELECTION 
AND  APPOINTMENT:  Covering  natural 
guardians;  testamentary  guardians;  statu- 
tory guardians;  guardians  by  estoppel; 
guardians  of  insane  persons;  guardians  ad 
litem,  etc. 

Chapter   XII. 

RIGHTS,  DUTIES,  AND  LIABILITIES  OF 
GUARDIANS:  Right  to  custody  and  serv- 
ices of  ward;  maintenance  of  ward;  change 
of  ward's  domicile;  management  of  ward's 
esta.te;  foreign  guardians;  inventory  and 
accounts;  compensation  of  guardian;  trans- 
actions between  guardian  and  ward,  etc. 

Chapter   XIII. 

TERMINATION  OF  GUARDIANSHIP  — 
ENFORCING  GUARDIAN'S  LIABILI- 
TY: Covering  the  subject  generally. 

PART  IV. 

INFANTS,    PERSONS     NON    COMPOTES 

MENTIS,  AND  ALIENS. 

Chapter    XIV. 

INFANTS:  Covering  contracts  of  infants,  in- 
cluding ratification  and  disaffirmance:  lia- 
bilities for  necessaries,  etc.;  capacity  to 
hold  office,  to  make  a  will,  and  as  witness- 
es; liability  for  torts  and  crimes;  infants 
as  parties  to  actions,  etc. 

Chapter    XV. 

PERSONS  NON  COMPOTES  MENTIS 
AND  ALIENS:  Covering  insane  and 
drunken  persons,  their  contracts,  their  lia- 
bility for  torts  and  crimes  and  testament- 
ary capacity,  etc. 

PART  V. 

MASTER  AND  SERVANT. 

Chapter    XVI. 

CREATION  AND  TERMINATION  OF  RE- 
LATION: Remedies  for  breach  of  con- 
tract; rights  and  duties  and  liabilities  inter 
se  and  as  to  third  persons,  etc. 


C1243 


1   VOLUME.     589  PAGES.     $3.75,  DELIVERED. 


WEST  PUBLISHING  COMPANY,  ST.  PAUL,  MINN. 

(17) 


(3n  *0e  gornfiooft 


f\  treatise  on 
of. 


By  Simon  Greenkaf  groswell. 


Author  of  "Electricity," 
"Patent  Cases,"  etc. 


TABLE  OF  CONTENTS. 


Part  I.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 
Chapter   I. 

DEFINITIONS  AND  DIVISION  OF  SUBJECT:  Ex- 
ecutors and  administrators  defined;  analysis  of 
book. 

Part  II.— APPOINTMENT  AND  QUALIFICATIONS. 

Chapter  II. 

APPOINTMENT  IN  COURT:  Necessity  of  adminis- 
tration; necessity  of  appointment  by  court;  ju- 
risdiction; conclusiveness  of  decrees  of  probate 
courts,  etc. 

Chapter  III. 

PLACE  AND  TIME  OF  APPOINTMENT  AND  REQ- 
UISITES THEREFOR:  Place  of  appointment; 
property  necessary  to  give  jurisdiction;  time  limit 
for  application. 

Chapter  IV. 

WHO  MAY  CLAIM  APPOINTMENT  AS  EXECU- 
TOR: Designation  in  will;  appointment  by  dele- 
gation; executor  of  executor;  non-assignability 
of  office. 

Chapter  V. 

WHO  MAY  CLAIM  THE  RIGHT  TO  ADMINISTER: 
Principle  which  governs  the  right;  order  of  pre- 
cedence; creditors;  preferences  among  kindred 
etc. 

Chapter  VI. 

DISQUALIFICATIONS  FOR  THE  OFFICE  OF  EX- 
ECUTOR OR  ADMINISTRATOR:  Infants,  mar- 
ried women,  idiots,  lunatics,  convicts,  corpora- 
tions; poverty  and  insolvency:  absolute  and  dis- 
cretionary incompetency,  etc. 

Chapter  VII. 

ACCEPTANCE  OR  RENUNCIATION:  Express  or 
implied  renunciation. 

Chapter  VIII. 

PROCEEDINGS  FOR  APPOINTMENT  OF  EXECU- 
TORS AND  ADMINISTRATORS:  In  general. 

Chapter  IX. 

SPECIAL  KINDS  OF  ADMINISTRATIONS:  Admin- 
istration cum  testamento  annexo;  de  bonis  non; 
during  minority;  pendente  lite;  public  adminis- 
trator; executor  de  son  tort,  etc. 

Chapter  X. 

FOREIGN  AND  INTERSTATE  ADMINISTRATION: 
Validity  of  foreign  wills;  territorial  limit  of  va- 
lidity of  letters;  principal  and  ancillary  adminis- 
tration; conflict  of  laws;  comity,  etc. 

Chapter  XI. 

JOINT  EXECUTORS  AND  ADMINISTRATORS:  Na- 
ture of  estate;  rights,  powers  and  liabilities;  rem- 
edies between,  etc. 

Chapter  XII. 

ADMINISTRATION  BONDS:  Covering  the  subject 
generally. 


Part  III.— POWERS  AND  DUTIES. 
Chapter  XIII. 

INVENTORY— APPRAISEMENT— NOTICE  OF  AI 
POINTMENT:  Covering  the  subject  generally. 

Chapter  XIV. 

ASSETS  OF  THE  ESTATE:  What  are  assets;  flj 
tures;  emblements;  animals;  ownership  at  time  c 
death,  etc. 

Chapter  XV. 

MANAGEMENT  OF  THE  ESTATE:  Rights  and  lie 
bilities  of  executors  or  administrators;  collectio 
and  investment  of  assets,  taxation,  etc. 

Chapter  XVI. 

SALES  AND  CONVEYANCES  OF  PERSONAL  Ol 
REAL  ASSETS:  Covering  sales  in  general,  sale 
of  land  to  pay  debts,  power  to  mortgage,  etc. 

Chapter  XVII. 

PAYMENT  OF  DEBTS  AND  ALLOWANCES— IN 
SOLVENT  ESTATES:  Covering  priority  of  debt; 
widow's  allowance,  expenses  of  funeral  and  las 
illness,  costs  of  administration;  presentation  an 
allowance  of  claims,  insolvent  estates,  etc. 

Chapter  XVIII. 

PAYMENT  OF  LEGACIES:  Legacies  subordinate  t 
debts;  ademption  and  abatement  of  legacies 
priority  between  legacies  and  contingent,  futur 
or  unknown  debts;  payment  of  legacies,  interest 
etc. 

Chapter  XIX. 

DISTRIBUTION  OF  INTESTATE  ESTATES:  Ordei 
time  and  mode  of  distribution;  rights  of  husband 
widow  and  next  of  kin,  right  of  presentation 
payment  of  distributive  share,  etc. 

Chapter  XX. 

ADMINISTRATION  ACCOUNTS:  Time  and  manne 
of  accounting,  charges  and  allowances  In  account 
commissions  and  compensation,  etc. 

Part  IV.— TERMINATION  OF  OFFICE. 
Chapter   XXI. 

REVOCATION  OF  LETTERS— REMOVAL— RESIQ 
NATION:  Covering  the  subject  generally. 

Part  V.— REMEDIES. 
Chapter  XXII. 

ACTIONS  BY  EXECUTORS  AND  ADMINISTRA 
TORS:  Power  to  sue  before  probate  or  grant  o 
letters;  survival  of  actions;  actions  in  persona 
and  representative  capacity,  etc. 

Chapter  XXIII. 

ACTIONS  AGAINST  EXECUTORS  AND  ADMIN 
ISTRATORS:  Survival  of  actions;  particular  lia 
bilities:  attachment  and  garnishment;  judgments 
executions  and  other  proceedings;  order  of  liabil 
Ity  of  assets;  suits  on  bonds,  etc. 

Chapter  XXIV. 

STATUTE  OF  LIMITATIONS— SET-OFF:  Genera 
and  special  statute  of  limitations,  set-off,  etc. 

Chapter  XXV. 

EVIDENCE  AND  COSTS:  Covering  the  subjeoi 
generally. 


i  Vol.    696  Pages. 
$3-75.  Net,  Delivered. 
C1395 


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(18) 


Corpotaftotw* 


By  Wn.  L.  CLARK,  Jr., 

Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 


TABLE  OF  CONTENTS. 


Chapter  I. 

OF  THE  NATURE  OF  A  CORPORATION: 
Definition  and  creation;  limited  powers;  attri- 
butes and  incidents;  corporation  as  a  person, 
citizen,  etc. ;  kinds  of  corporations,  etc. 

Chapter  II. 

CREATION  AND  CITIZENSHIP  OP  CORPO- 
RATIONS: Covering  the  subject  generally,  in- 
cluding power  to  create;  general  and  special 
laws;  ratification  of  claim  to  corporate  exist- 
ence; agreement  between  corporation  and  state 
— acceptance  of  charter;  agreement  between 
corporators  and  corporation ;  purpose  of  incorpo- 
ration; corporate  name,  residence,  and  citizen- 
ship of  corporation ;  extension  of  charter ;  proof 
of  corporate  existence,  etc. 

Chapter  III. 

EFFECT  OF  IRREGULAR  INCORPORATION: 
Corporations  de  facto ;  estoppel  to  deny  corpo- 
rate existence;  liability  of  stockholders  as  part- 
ners. 

Chapter  IV. 

RELATION  BETWEEN  CORPORATION  AND 
ITS  PROMOTERS:  Liability  for  expenses  and 
services  of  promoters;  liability  on  contract  by 
promoters;  liability  of  promoters  to  corporation 
and  stockholders,  etc. 

Chapter  V. 

POWERS  AND  LIABILITIES  OF  CORPORA- 
TIONS: Express  and  implied  powers;  con- 
struction of  charter;  power  to  hold  realty;  con- 
tracts and  conveyances,  etc. 

Chapter  VI. 

POWERS  AND  LIABILITIES  OF  CORPORA- 
TIONS (Continued) :  The  doctrine  of  ultra  vires. 

Chapter  VII. 

POWERS  AND  LIABILITIES  OF  CORPORA- 
TIONS (Continued):  Responsibility  for  torts 
and  crimes ;  contempt  of  court. 

Chapter  VIII. 

THE  CORPORATION  AND  THE  STATE: 
Charter  as  a  contract;  police  power  of  the  state ; 
power  of  eminent  domain;  repeal  and  amend- 
ment of  charter;  taxation  of  corporation. 


Chapter  IX. 

DISSOLUTION  OF  CORPORATIONS:  How  ef- 
fected; equity  jurisdiction;  effect  of  dissolu- 
tion, etc. 

Chapter  X. 

MEMBERSHIP  IN  CORPORATIONS:  Capital 
stock  and  capital;  nature  of  corporate  shares; 
certificates  of  stock ;  subscriptions  to  stock;  re- 
lease and  discharge  of  subscriber,  etc.,  covering 
the  subject  generally. 

Chapter  XI. 

MEMBERSHIP  IN  CORPORATIONS  (Contin- 
ued) :  Right  to  inspect  books  and  papers;  right 
to  vote;  profits  and  dividends;  increase  of  cap- 
ital; preferred  stock ;  watered  and  bonus  stock; 
action  by  stockholders  for  injuries  to  corpora- 
tion ;  expulsion  of  members,  etc. 

Chapter  XII. 

MEMBERSHIP  IN  CORPORATIONS  (Contin- 
ued) :  Covering  transfer  of  shares. 

Chapter  XIII. 

MANAGEMENT  OF  CORPORATIONS— OFFI- 
CERS AND  AGENTS:  Powers  of  majority  of 
stockholders;  by-laws;  stockholders'  meetings; 
election  and  appointment  of  officers  and  agents: 
powers  and  liabilities  of  officers  and  agents;  re- 
moval of  officers  and  agents,  etc.,  covering  the 
subject  generally. 

Chapter  XIV. 

RIGHTS  AND  REMEDIES  OF  CREDITORS: 
Relation  between  creditors  and  the  corporation, 
covering,  inter  alia,  property  subject  to  execu- 
tion ;  assets  as  a  trust  fund  for  creditors;  fraud- 
ulent conveyances;  assignment  for  benefit  of 
creditors;  preferences;  dissolution,  injunction, 
and  receivers;  relation  between  creditors  and 
stockholders,  covering,  inter  alia,  statutory  lia- 
bility of  stockholders;  contribution  between 
stockholders,  etc. ;  relation  between  creditors 
and  officers,  covering  preferences  to  officers  who 
are  creditors ;  statutory  liability  of  officers. 

Chapter  XV. 

FOREIGN  CORPORATIONS:  Covering  the  sub- 
ject generally. 

APPENDIX. 

The  logical  conception  of  a  corporation. 


i  Volume.    740  pages.     $3.75,  net,  delivered. 


West  Publishing  Co,,  St.  Paul,  Minn. 

C1479  (19) 


JgornBooft 


>f 


of 


djeorae. 

** 


TABLE  OF  CONTENTS. 


Chapter    I. 

DEFINITION  AND  ESTABLISHMENT  OF 
RELATION:  What  constitutes  a  partner- 
ship; tests  of  intention;  sharing  prqfits ;  pro- 
moters of  corporations;  defective  corpora- 
tion; delectus  personarum;  subpartnerships; 
holding  out,  etc. 

Chapter   II. 

KINDS  OF  PARTNERSHIPS  AND  PART- 
.  NERS:  Classification  of  partnerships  and 
partners;  universal,  general,  and  special  part- 
nerships; limited  partnerships;  joint-stock 
companies;  mining  partnerships;  trading 
and  nontrading  partnerships,  etc. 

Chapter  III. 

CHARACTERISTIC  FEATURES  OF 
PARTNERSHIPS:  Legal  and  mercantile 
view  of  a  firm;  partnership  name;  partner- 
ship property;  partnership  capital;  shares  in 
partnerships,  etc. 

Chapter  IV. 

IMPLIED  RIGHTS  AND  LIABILITIES  IN- 
TER SE:  Participation  in  management; 
rights  and  powers  of  majority;  duty  to  ex- 
ercise care,  skill,  and  good  faith;  right  to 
compete  with  firm;  compensation  for  serv- 
ices; interest  on  balances;  partner's  lien; 
division  of  profits,  etc. 

Chapter  V. 

ARTICLES  OF  PARTNERSHIP:  Purpose 
and  effect;  rules  of  construction;  usual 
clauses  in  articles,  etc.;  covering  the  subject 
generally. 

Chapter  VI. 

RIGHTS  AND  LIABILITIES  AS  TO 
THIRD  PERSONS:  Express  and  implied 
authority  of  partner  to  bind  firm;  particu- 
lar powers;  liability  of  partners  to  third 
persons;  incoming  partners;  assumption  of 
debts;  rights  in  firm  and  separate  property. 
etc. 


Chapter  VII. 

ACTIONS  BETWEEN  PARTNERS:  Actio 
on  partnership  claim  or  liability,  at  law,  i 
equity,  or  under  the  code;  actions  bet  wee 
firms  with  a  common  member;  actions  q 
individual .  obligations;  equitable  actions  i 
general;  accounting  and  dissolution;  sp< 
cific  performance;  injunction;  receivers,  eti 


Chapter    VIII. 

ACTIONS  BETWEEN  PARTNERS  AN] 
THIRD  PERSONS:  Parties  in  actior 
by  and  against  partners;  effect  of  changt 
in  firm;  disqualification  of  one  partner  1 
sue;  action  in  firm  name,  etc. 


Chapter   IX. 

DISSOLUTION:  Causes  of  dissolution;  par 
nerships  for  a  definite  and  indefinite  tim< 
causes  subject  to  stipulation ;  causes  not  sul 
ject  to  stipulation;  causes  for  which  a  con: 
will  decree  a  dissolution;  consequences  < 
dissolution  as  to  third  persons  and  as  1 
partners. 

Chapter   X. 

LIMITED  PARTNERSHIPS:  Covering  tl 
subject  exhaustively,  including,  inter  ali 
definition  and  establishment  of  relatioi 
general  and  special  members;  certificat 
contribution  of  general  and  special  partner 
name;  sign;  rights  and  liabilities;  wit] 
drawal,  alteration,  and  interference;  insc 
vency;  termination  of  relation;  change  fro 
limited  to  general  liability;  actions,  etc. 


Chapter    XI. 

JOINT-STOCK  COMPANIES:  Definitional 
nature;  transfer  of  shares;  powers  of  mer 
bers  and  officers;  rights  and  liabilities;  a 
tions,  etc. 


I  Volume,  616  pages.     $3.75,  net,  delivered. 


West  Publishing  Co,,  St.  Paul,  Minn. 

C1471  (20) 


($  1E)anb6oo8  of 


genj.  3. 

Author  of   "  Shipman's  Common-Law  Pleading." 


TABLE    OF    CONTENTS. 


Chapter    I. 

EQUITY  PLEADING  IN  GENERAL:  Cov- 
ering nature  and  scope  of  pleadings  in  eq- 
uity 

Chapter   U. 

PARTIES:  Giving  general  rules,  and  covering 
classification  of  parties  as  necessary,  proper 
but  not  indispensable,  formal,  and  parties 
with  separable  interests;  parties  complain- 
ant and  respondent;  joinder,  etc. 

Chapter  III. 

PROCEEDINGS  IN  AN  EQUITABLE 
SUIT:  Indicating  the  steps  usually  taken 
and  the  method  of  procedure,  as  the  bill, 
appearance,  proceedings  on  default;  the 
modes  of  defense,  by  disclaimer,  demurrer, 
plea,  or  answer;  the  replication;  interlocu- 
tory proceedings,  as  amendment,  injunc- 
tions, production  of  documents,  interven- 
tion; the  evidence,  hearing,  and  decree;  the 
correction,  reversal,  or  enforcement  of  de- 
crees, etc. 


Chapter  IV. 

BILLS  IN  EQUITY:  Covering  definition  and 
classification,  and  discussing  original  bills, 
and  bills  not  original,  with  a  summary  of 
the  general  rules  covering  the  bill,  etc. 

Chapter  V. 

THE  DISCLAIMER:  Definition,  nature,  and 
use. 

Chapter  VI. 

DEMURRER:  Definition;  form  of  demurrer, 
and  grounds  therefor;  orders  sustaining  or 
overruling  demurrer,  etc. 

Chapter  VII. 

THE  PLEA:  Definition,  nature,  and  office  of 
pleas,  grounds  for  pleas,  their  form,  support- 
ing answers,  etc. 

Chapter  VIII. 

THE  ANSWER:  Nature  and  office,  substance 
and  effect,  of  the  answer,  and  the  character- 
istics thereof. 

Chapter  T3E, 

THE  REPLICATION. 


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of 


of 


Author  of  "Common-Law  Pleading,"  etc. 


TABLE    OF    CONTENTS. 


CHAPTER  I. 

INTRODUCTORY :  Definitions;  origin,  place 
and  function  of  the  law  of  evidence,  etc. 

CHAPTER  II. 

JUDICIAL  NOTICE:  The  doctrine  in  general; 
facts  which  may  or  must  be  noticed. 

CHAPTER  III. 

QUESTIONS  OF  LAW  AND  QUESTIONS 
OF  FACT:  Definitions;  province  of  court 
and  jury. 

CHAPTER  IV. 

BURDEN  OF  PROOF:  Burden  of  proof  never 
shifts;  burden  of  proceeding  may  shift;  ver- 
dict, etc. 

CHAPTER  V. 

PRESUMPTIONS:  Presumptions  as  rules  of 
law;  prima  facie,  conclusive,  spurious,  and 
conflicting  presumptions. 

CHAPTER  VI. 

ADMISSIONS:  Direct  and  indirect  admissions; 
admissibility;  civil  and  criminal  cases;  ef- 
fect of  admission,  etc. 

CHAPTER  VII. 

CONFESSIONS:  Defined;  voluntary  or  under 
influence;  may  be  explained;  evidence  there- 
from, etc. 

CHAPTER  VIII. 

MATTERS  EXCLUDED  AS  UNIMPOR- 
TANT, OR  AS  MISLEADING,  THOUGH 
LOGICALLY  RELEVANT:  Logical  and  le- 
gal relevancy,  rule  excluding;  classification 
of  matter;  proof  of  diverse  matters  consid- 
ered. 


CHAPTER  IX. 

CHARACTER:  General  rule;  when  material; 
how  proved,  etc. 

CHAPTER  X. 

OPINION  EVIDENCE:  Matter  of  opinion  dis- 
tinguished from  matter  of  fact;  general  rule; 
exceptions:  matters  forming  subject  of  ex- 
pert opinion,  etc. 

CHAPTER  XL 

HEARSAY:  General  rule;  exceptions;  real 
and  appaient;  classes  of  statements  admit- 
ted because  of  the  difficulty  of  other  proof. 

CHAPTER  XII. 

WITNESSES:  Rules  excluding  witnesses;  per- 
sons excluded;  privilege  distinguished  from 
disqualification;  privileged  persons. 

.      CHAPTER  XIII. 

EXAMINATION  OF  WITNESSES:  Ordinary 
method:  refreshing  memory;  direct  and 
cross  examination;  leading  questions;  im- 
peaching witness,  etc. 

CHAPTER  XIV. 

WRITINGS:  Brst  evidence  rule;  production  of 
documents;  authentication  of  documents; 
proof  of  handwriting;  evidence  affecting  the 
contents  of  documents,  etc. 

CHAPTER  XV. 

DEMURRERS  TO  EVIDENCE:  Definition; 
when  joinder  compelled;  final  form,  etc. 


1  vol.    480  pages.     $3.75,  net,  delivered. 


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TABLE    OF   CONTENTS. 


Chapter   I. 

DEFINITION  AND  ESSENTIAL  ELE- 
MENTS :  Considering  also  proximate 
cause ;  efficient,  intervening,  or  co-operating 
cause,  etc. 

Chapter   II. 

CONTRIBUTORY  NEGLIGENCE:  Defini- 
tion and  general  rule ;  degree  of  care ;  as- 
sumption of  risk  and  legal  status  of  plain- 
tiff ;  plaintiff's  negligence ;  negligence  of 
third  persons ;  imputed  negligence ;  phys- 
ical condition  as  an  element ;  evidence, 
pleading,  and  questions  of  fact. 

Chapter   III. 

LIABILITY  OF  MASTER  TO  SERVANT: 
Duty  of  master,  as  to  appliances,  selecting 
servants,  rules,  etc. ;  limitation  of  master's 
duty ;  ordinary  risks,  known  dangers,  fel- 
low servants ;  concurrent  and  contributory 
negligence. 

Chapter   IV. 

LIABILITY  OF  MASTER  TO  THIRD  PER- 
SONS :  Relationship ;  independent  con- 
tractor ;  willful  torts  of  servants,  and  inde- 
pendent torts. 

Chapter   V. 

COMMON   CARRIERS   OF   PASSENGERS: 

The  relation  of  passenger  and  carrier ;  ter- 
mination of  relation  ;  who  are  passengers ; 
the  contract,  ticket,  compensation,  etc. 

Chapter   VI. 

CARRIERS  OF  GOODS:  Definition;  liabili- 
ty for  loss  or  damage :  liability  for  delay ; 
contracts  limiting  liability  in  special  states ; 
limiting  time  and  manner  of  making  claims ; 
construction  of  limiting  contracts ;  actual 
notice ;  special  classes  of  goods,  as  live 
stock  and  baggage ;  beginning  and  termina- 
tion of  liability ;  excuses  for  nondelivery. 


Chapter   VH. 

OCCUPATION  AND  USE  OF  LAND  AND 
WATER  :  Duties, — general  rule  :  lateral 
support ;  dangerous  premises  ;  landlord  and 
tenant,  and  condition  of  rented  premises ; 
water  courses ;  dams ;  obstruction  of  navi- 
gable streams,  etc. 

Chapter    VIII. 

DANGEROUS  INSTRUMENTALITIES : 
Railroads  ;  degree  of  care  exacted  ;  signals  ; 
care  required  of  persons ;  collisions  with 
persons  and  with  animals ;  fires ;  inten- 
tional, accidental,  and  railroad  fires ;  ani- 
mals ;  communicating  disease  ;  firearms,  ex- 
plosives, poisons,  etc. 

Chapter   IX. 

NEGLIGENCE  OF  ATTORNEYS.  PHYSI- 
CIANS, AND  PUBLIC  OFFICERS: 

Negligence  of  attorneys ;  damage  essential 
to  liability  ;  negligence  of  physicians  ;  bur- 
den of  proof,  evidence,  pleading,  etc. ;  negli- 
gence of  public  and  governmental  officers, 
ministerial  officers,  sheriffs  and  constables, 
notaries  public,  clerks  of  court,  and  registers 
of  deeds. 

Chapter   X. 

DEATH  BY  WRONGFUL  ACT :  Right  of  ac- 
tion ;  instantaneous  death,  proximate  cause 
of  death,  beneficiaries  ;  damages  ;  pleading 
and  evidence ;  limitation  of  commencement 
of  action. 

Chapter    XI. 

NEGLIGENCE  OF  MUNICIPAL  CORPO- 
RATIONS :  Public  and  private  corpora- 
tions ;  right  of  action ;  liability  for  inju- 
ries ;  alteration  of  grades ;  acts  of  officers 
or  agents  ;  acts  ultra  vires ;  judicial  or  leg- 
islative duties ;  conflagrations  and  destruc- 
tion by  mobs  ;  public  health  and  sanitation  ; 
quasi  municipal  corporations. 


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Editor  3d  Edition  Collier  on  Bankruptcy,  Co-Editor  American  Bankruptcy  Reports, 
Eaton  and  Greene's  Negotiable  Instruments  Law,  etc. 


TABLE  OF  CONTENTS. 


ORIGIN  AND  HISTORY:  Showing  distinc- 
tion between  law  and  equity,  equity  juris- 
diction in  the  United  States,  etc, 

GENERAL,  PRINCIPLES  GOVERNING 
THE  EXERCISE  OF  EQUITY  JURIS- 
DICTION: Covering  adequate  remedy  at 
law,  multiplicity  of  suits,  etc. 

MAXIMS:  With  a  separate  discussion  of 
each. 

PENALTIES  AND  FORFEITURES:  Cov- 
ering rules  governing  the  determination  as 
to  liquidated  damages  or  penalty,  statutory 
penalties  and  forfeitures,  etc. 

PRIORITIES  AND  NOTICE:  Covering 
equal  and  superior  equities,  notice,  etc. 

BONA  FIDE  PURCHASERS  WITHOUT 
NOTICE:  The  doctrine  and  its  applica- 
tion. 

EQUITABLE  ESTOPPEL:  Essential  ele- 
ments, operation  of  estoppel,  etc. 

ELECTION:  The  doctrine  and  its  applica- 
tion; ascertainment  of  values,  etc. 

SATISFACTION  AND  PERFORMANCE: 
Satisfaction  of  debts,  of  legacies,  of  por- 
tions, etc.;  parol  or  extrinsic  evidence,  etc. 

CONVERSION   AND   RECONVERSION: 

The  doctrine;    effect  of  conversion;    total  or 
partial   failure  of  purposes. 

ACCIDENT  as  a  ground  of  equitable  relief. 
MISTAKE  as  a  ground  of  equitable  relief. 


FRAUD  as  a  ground  of  equitable  relief;    ac- 
tual and  constructive  fraud,  etc. 

EQUITABLE    PROPERTY:     Trusts    gener- 
ally;  express  trusts,  etc. 


Resulting    and    con- 


IMPLIED    TRUSTS: 
structive  trusts,  etc. 

TOWERS,  DUTIES,  AND  LIABILITIES 
OF  TRUSTEES:  Acceptance;  breach  of 
trust;  accounts,  etc. 

MORTGAGES:  The  common-law  and  equi- 
table doctrines  as  to  mortgages  and  pledges. 

EQUITABLE  LIENS:  Arising  from  consid- 
erations of  justice,  from  charges  by  will  or 
deed,  etc. 

ASSIGNMENTS:  Of  choses  in  action,  pos- 
sibilities and  expectancies,  etc. 

REMEDIES  SEEKING  PECUNIARY  RE- 
LIEF: Contribution,  exoneration,  defense, 
etc. 

SPECIFIC  PERFORMANCE:  Contracts 
for  same,  defenses,  variance,  etc. 

INJUNCTION:  Classification,  with  discus- 
sion. 

PARTITION,  DOWER,  AND  ESTABLISH- 
MENT OF  BOUNDARIES:  Jurisdiction, 
procedure,  etc. 

REFORMATION,  CANCELLATION,  AND 
CLOUD  ON  TITLE:  Parties,  evidence, 
statute  of  frauds,  etc. 

ANCILLARY  REMEDIES:  Rules  respect- 
ing discovery,  examination  of  witnesses,  in- 
terpleader, receivers,  etc. 


1  volume,  734  pages.     $3.75  delivered. 


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TABLE  OF  CONTENTS. 


The  Origin  and  History  of  the  Admiralty,  and 
its  Extent  in  the  United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Sub- 
ject Matter. 

General  Average  and  Marine  Insurance. 

Bottomry    and    Respondentia ;     and    Liens    for 
Supplies,  Repairs,  and  Other  Necessaries. 

Stevedores'   Contracts,    Canal   Tolls,    and   Tow- 
age Contracts. 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  Barter  Act 
of  February  13,  1S93. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries 
Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 
The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels.  Special  Circum- 
stances, and  General  Precautions. 

Damages  in  Collision  Cases. 

\ressel   Ownership   Independent  of  the   Limited 
Liability  Act. 


Rights  and  Liabilities  of  Owners  as  Affected  by 
the  Limited  Liability  Act. 

The  Relative  Priorities  of  Maritime  Claims. 
A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

1.  The  Mariner's  Compass. 

2.  Statutes   Regulating   Navigation,    Including: 

(1)  The  International  Kules. 

(2)  The   Rules   for   Coast   and   Connecting 

Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High 

Seas  and  Coast  Waters. 

(4)  The  Lake  Rules. 

(n)  The  Mississippi  Valley  Rules. 
(G)  The  Act  of  March  3,  1899,  as  to  Ob- 
structing Channels. 

3.  The(  Limited  Liability  Acts.  Including: 

(1)  The  Act  of  March  3,  1831,  as  Amended. 

(2)  The  Act  of  June  26,  1SS4. 

4.  Section  941,  Rev.  St.,  as  Amended,  Regulat- 

ing Bonding  of  Vessels. 

5.  Statutes  Regulating  Evidence  in  the  Federal 

Courts. 

6.  Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice. 


1  volume,  503  Pages.     S3  75  delivered. 


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o 


f  (prittcipaf 


Author  of  Death  by  Wrongful  Act,  Law  of  Sales,  etc, 


TABLE  OF  CONTENTS. 


Part    I.    IN    GENERAL. 

Chap. 

I.  Introductory — Definitions. 

II.  Creation  of  the  Relation  of  Principal  and  Agent — Appointment 

III.  Same  (continued) — Ratification. 

IV.  What  Acts  Can  be  Done  by  Agent — Illegality — Capacity  of  Parties- 

Joint  Principals  and  Agents. 
V.  Delegation  by  Agent — Subagents. 
VI.  Termination  of  the  Relajtion. 
VII.  Construction  of  Authority. 

Part  II.  BIGHTS  AND  LIABILITIES 
BETWEEN  PRINCIPAL  AND  THIBD 
PERSON. 

VIII.  Liability  of  Principal  to  Third  Person— Contract 
IX.  Same  (continued). 
X.  Admissions  by  Agent — Notice  to  Agent. 
XI.  Liability  of  Principal  to  Third  Person — Torts  and  Crimea. 
XII.  Liability  of  Third  Person  to  Principal. 

Part  HI.  BIGHTS  AND  LIABILITIES 
BETWEEN  AGENT  AND  THIBD  PER- 
SON. 

XIII.  Liability  of  Agent  to  Third  Person  (including  parties  to  contracts). 

XIV.  Liability  of  Third  Person  to  Agent. 

Part  IV.  BIGHTS  AND  LIABILITIES 
BETWEEN  PRINCIPAL  AND  AGENT. 

XV.  Duties  of  Agent  to  Principal. 
XVI.  Duties  of  Principal  to  Agent. 
Appendix. 

WEST  PUBLISHING  CO.,  St.  Paul,  Hirm 

(26) 


3E)orn8oo8  Aeries* 


THE   ALBANY   LAW  JOURNAL,  in  a  recent  review  of  one  of  the  volumes  of  the 
Hornbook  Series,  writes  : 

"So  much  has  been  written  upon  the  merits-of  the  Hornbook  Series  that  anything  additional 
may  seem  superfluous;  yet  we  cannot  refrain  from  commenting,  in  passing,  upon  the  general  utility, 
merit,  and  scope  of  the  series.  *  *  *  The  series  is  of  untold  value  to  the  practicing  lawyer, 
enabling  him  to  find  and  refresh  his  mind  in  an  instant  upon  any  fundamental  principle  or  variation 
therefrom  of  which  he  may  be  in  doubt,  and  furnishing  an  ever-ready  and  convenient  digest  of  the 
law. " 

This  emphasizes  the  fact,  which  has  also  been  practically  recognized  by  the 
members  of  the  bar  who  have  examined  the  volumes  issued  under  this  name,  that, 
although  low  in  price,  they  are  not,  in  consequence,  cheap  books.  They  are  elemen- 
tary in  the  sense  that  they  deal  with  the  elementary  branches  of  law,  but  they  are 
not  by  any  means  elementary  in  the  sense  that  they  fail  to  give  the  compre- 
hensive handling  which  the  practitioner,  as  distinguished  from  the  law  student,  re- 
quires. In  planning  the  style  and  character  of  this  series,  the  controlling  idea 
was  that  any  principle  of  law  could  be  stated  in  simple  and  intelligible  terms,  if  the 
man  who  made  the  statement  understood  the  principle,  and  knew  how  to  express 
himself.  It  was  to  some  extent  an  attack  upon  the  old  theory  that  a  certain  amount 
of  obscurity  in  a  legal  document  heightened  the  effect  of  learning.  It  was  main- 
tained, instead,  that  any  legal  principle  could  be  stated  in  simple  and  intelligible 
terms,  and  each  separate  branch  of  the  law,  if  carefully  studied  with  this  in  view, 
could  be  mapped  out  so  that  the  fundamental  principles  involved  could  be  shown  in 
an  orderly  sequence,  and  in  their  relation  to  each  other.  The  soundness  of  the 
theory  has  been  shown  by  the  success  of  the  Hornbook  Series.  The  several  vol- 
umes have  been  prepared  by  different  authors,  carefully  chosen  from  the  field 
of  legal  writers,  with  the  object  of  securing  thorough  and  expert  treatment  of  the 
particular  subject  assigned  in  each  instance.  The  method  of  presentation  was  at  first 
considered  a  novel  one,  but  has  now  become  so  well  known,  through  the  seventeen 
works  issued,  that  the  Albany  Law  Journal  could  refer  to  it  in  the  terms  quoted  at 
the  beginning  of  this  notice.  The  books  have  been  found  so  exact  in  statement,  so 
convenient  in  arrangement,  and  so  unmistakably  clear  in  style,  that  they  have  been 
adopted  as  the  basis  of  instruction  in  over  seventy  law  schools.  At  the  same  time, 
they  have  been  found  by  practitioners  to  be  exactly  the  kind  of  book  that  a  prac- 
titioner needs  to  have  on  his  desk  for  current  reference.  He  presumably  knows 
the  law,  yet  he  often  desires  to  refresh  his  memory  regarding  some  special  branch 
before  he  takes  up  a  case  involving  questions  relating  to  it,  and  for  that  purpose 
the  arrangement  of  black-letter  paragraphs  for  the  statement  of  principles  is  pecul- 
iarly convenient.  At  the  same  time,  the  exceptions  and  modifications  of  these 
principles  are  stated  in  a  different  type,  so  that  it  is  possible  for  him  to  go  into  de- 
tails of  any  question  when  he  desires  to  do  so.  The  authorities  are  grouped  in 
notes  at  the  foot  of  the  page,  and  their  completeness  is  evidenced  by  such  testi- 
mony as  the  following: 

"I  found  upon  page  58  of  this  small  volume  [Clark's  Criminal  Law],  in  a  small  compass,  a 
statement  of  the  divergent  views,  and  a  collation  of  the  authorities  pro  and  con  [on  a  certain  ques- 
tion], all  contained  in  a  more  condensed  and  satisfactory  form  than  I  have  found  in  any  other 
treatise." — Hon.  J.  M.  Dickinson,  Asst.  U.  S.  Atty.  Gen. 

"I  found  in  Clark's  Criminal  Procedure,  under  'Jurisdiction,'  authorities  regarding  the  ques- 
tion of  asportation,  for  which  I  had  on  a  previous  occasion  spent  months  of  patient  search.  Fetter 
on  Equity  has  also  already  paid  for  itself  many  times  over." — U.  S.  G.  Pitzer,  Prosecuting  Attorney, 
Martinsburg,  W.  Va. 

C1328-6  (2<") 


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